What the Senate Does Now Will Cast a Long Shadow

https://www.nytimes.com/2019/12/23/opinion/senate-impeachment-trial.html

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When the Senate ultimately convenes to consider whether to remove the president from office, for just the third time in its history, it will convene not as a legislative body, but as a court of impeachment. And it will not just be President Trump on trial. The Senate — and indeed, truth itself — will stand trial.

Senators serve as a unique combination of judge and juror during an impeachment trial. Sworn in by the chief justice of the United States, senators take a special oath to do “impartial justice according to the Constitution and laws.” This is an oath I have taken several times. First elected to the Senate in 1974, in the wake of Watergate, I have served on six impeachment trials since then — five judges and one president. I take this oath extraordinarily seriously. And it’s one I fear the Senate is on the verge of abandoning.

Senator Lindsey Graham has admitted that he’s “not trying to pretend to be a fair juror here.” The Senate majority leader, Mitch McConnell, vowing a quick acquittal, boasted that he is “not an impartial juror” and pledged that “there will be no difference between the president’s position and our position as to how to handle this.”

This is tantamount to a criminal defendant being allowed to set the rules for his own trial, while the judge and jury promise him a quick acquittal. That is a far cry from the “impartial justice” required by our oaths and the Constitution.

Given this, I understand why the House speaker, Nancy Pelosi, did not rush to send the Articles of Impeachment to the Senate before the holiday recess. A sham trial is in no one’s interest. A choreographed acquittal exonerates no one, serves only to deepen rifts within the country and eviscerates the Senate’s constitutional role. That is why the advice I shared with my fellow senators last week was to go home for the holidays, take a deep breath, and come back and conduct the trial as the Senate should — and as the Constitution requires.

How the Senate conducts the trial will be up to 51 senators, not simply one or two. While the chief justice presides, the duration and scope of the trial, including whether to call witnesses or compel document production, will be decided by a simple majority of the Senate. It is my hope that those decisions will be agreed to by all senators.

For example, although the House impeachment of President Bill Clinton was marked by deep partisan acrimony, the Senate came together, 100 to 0, to approve a resolution outlining trial procedures. I said then that we had “to preserve the Senate and give the country a sense of credibility.” Asked at the time by this newspaper about grumblings from the White House, I made it clear that it is not the Senate’s role to defend either the president or the House.

There was a sense then, shared even by Senator McConnell, who first came to the Senate in 1985, that the Senate itself was on trial. That is even truer today.

The House has accumulated significant evidence that Mr. Trump used his office, and leveraged congressionally appropriated foreign security assistance, for his personal political benefit by attempting to coerce Ukraine, a foreign ally facing Russian aggression, to announce an investigation into a domestic political rival.

The trial is the president’s opportunity to present a full-throated defense. There are many documents that could shed additional light on the president’s actions and several witnesses who have yet to testify. If exculpatory, I would expect the White House to welcome the production of the documents and urge the participation of the witnesses. They include the acting chief of staff, Mick Mulvaney, who publicly acknowledged that aid to Ukraine was tied to the prospect of investigations; the former national security adviser John Bolton, who described the president’s advisers’ attempts to compel Ukraine to intervene in our domestic affairs as “a drug deal,” and the senior White House budget official, Michael Duffey, who — we learned over the weekend — quietly ordered the Pentagon to freeze aid to Ukraine roughly 90 minutes after Mr. Trump asked the Ukrainian president for a “favor” on July 25th.

But so far, the president has directed these and other witnesses not to cooperate, and key documents have been withheld. That should change when the Senate holds a trial. During the Clinton trial, Senate Republicans passed a second resolution to call specific witnesses — even though those witnesses had previously testified extensively. Today, Mr. Trump is blocking critical witnesses from testifying at all.

The Senate should reject such stonewalling. It should not be complicit in a cover-up. We deserve to have the full story.

Nor should the Senate be complicit in promoting fact-free distractions and distortions. The president and some of his defenders have embraced objectively false and misleading defenses in the face of the House’s substantial evidence, including promoting a baseless theory that Ukraine interfered in the 2016 election. Even the president’s own national security advisers dismissed this theory as “completely debunked” and “a fictional narrative” that was “propagated by Russian security services.” The longer we permit cynically derived conspiracy theories to be equated with actual facts — with the truth — the more perilous the state of our republic.

How the Senate handles the coming trial will shape both the presidency and our constitutional system of checks and balances for decades, long after Mr. Trump leaves office. Will the Senate allow the president to abuse his public office to pursue wholly personal gains? Will the Senate permit the coercion of foreign governments to interfere in our domestic elections? Will the Senate enable the unprecedented, wholesale disregard of lawful congressional subpoenas to cover up the truth? Will the Senate make this the new norm?

I would not suggest to any senator that his or her oath requires at this time a specific verdict. Whether allegations are proven at trial is an entirely separate matter. But I strongly believe that our oath requires that all senators behave impartially and support a fair trial, one that places the pursuit of truth above fealty to this or any other president.

After vigorous debate, the framers included the power of impeachment in the Constitution for a reason. Presidents are not kings. Nor are they above the law. They can be removed for high crimes or misdemeanors, which means, according to Alexander Hamilton, an “abuse or violation of some public trust.”

The Senate has a job to do. And it’s not to rig the trial in favor of — or against — President Trump. Our job is to follow the facts and abide by the Constitution. An acquittal based on anything less would hardly be an acquittal at all.

Patrick Leahy (@SenatorLeahy), a Democratic senator from Vermont, is the vice chairman of the Appropriations Committee and a leading member of the Senate Judiciary Committee.

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