Turley: Impeachment trial witnesses could be ‘live torpedoes in the water’

Jonathan Turley: Well, the trial, as it unfolds, is going to deal with the underlying allegations of the articles of impeachment. There are two: obstruction of Congress and abuse of power. In my testimony, I actually said those two articles would be legitimate if proven. The four articles that I primarily testified against were actually rejected by the committee where I disagreed with them was the rush to impeach. And I encouraged them to take a couple of months to try to complete this record to prove their case. And they obviously didn’t do that. And so that’s now creating a serious problem because the House effectively handed over control of its case to the Senate and also to the opposing party. They immediately demanded many of the same witnesses that I strongly encouraged them to wait and call before the House.

Well, people like John Bolton, the former national security adviser. The House never even bothered to subpoena Bolton, let alone to try to compel his testimony. So I think, quite frankly, there has been a serious — if not historic — blunder in how the House handled this impeachment. And I believe it’s going to occupy a lot of us for many years as to why they did it this way.

Well, the problem is they destroyed their own narrative. You know, I encouraged them to take a couple of months. And then [in] that time, they could have gotten some of these witnesses and certainly, they would have gotten a number of court orders. Instead, they rushed it and then they just stopped. They waited a month trying to pressure the Senate into calling these very same witnesses. Well, that was never a very plausible strategy, you know, to say that I’m going to hold back the impeachment you loathe unless you make concessions to me. So obviously, McConnell didn’t make concessions. A month went by that could have been used by the House to actually create more of a record.

But now the question is, will the Senate call witnesses? Even though I disagree with what the House did, I think they should call witnesses. But the question is when you pass the rubicon on witnesses, what will that look like? The Democrats have developed a rather conflicted position. They say, well, our witnesses are relevant, but the witnesses Republicans want are not, particularly Hunter Biden. The chairman of the Judiciary Committee and one of the House managers, Jerry Nadler, said under no circumstances can Hunter Biden be called as a witness. Well, that creates a real conflict because Hunter Biden is a relevant witness to the defense. I mean, the president’s arguing that he was concerned about corruption and specifically the Biden contract with this Ukrainian energy company. Now, you don’t have to agree with a defense to recognize that this would be a relevant witness for the defense. But the House managers are saying that they will oppose that.

Well, it’s a Trump defense. You know, the defense looks very much like the man accused. If you boil down their response, it comes down to: “It was perfect.” You know, the president has argued that the call was perfect. His actions were perfect. Every way this played out was perfect.

And obviously, many of us disagree with that. I disagreed with it in my testimony. I don’t think his call was perfect. I think there [were] a great number of problems with it. But of course, that’s not the standard. It isn’t a choice between perfect and impeachable. There’s much stronger defenses that can be made if they recognize that the president really committed an inappropriate act in raising the Bidens in that call. That doesn’t mean it’s impeachable.

But the president views this as a moment really sort of made for television. You know, he’s going to maintain this consistent defense that everything was perfect and what they’re doing is pure politics. And that’s going to put some of the Republican senators in a bind because many of those senators do not believe the call was perfect. They do have serious concerns about what occurred. They just don’t necessarily agree that it’s impeachable.

Well, there’s both a historical and practical reason. Historically, high crimes and misdemeanors in England and the United States were not confined to crimes. And indeed, even some of the framers like James Madison, referred to things like maladministration as being relevant to impeachment. But also practically, it doesn’t make a lot of sense. I mean, if you think about all the things a president can do that would not necessarily be in the criminal code, you sort of realize why this would be a terrible idea. You know that if the president … encouraged … or demanded Ukraine [to] investigate his political opponents, let’s say he wanted Elizabeth Warren’s family investigated for no reason at all, presumably, most citizens would view that as an impeachable offense. So it goes too far, but it also has very little basis, I think, in history, in the language of the Constitution. So that’s going to create a problem again for some of these moderate Republican senators. These are members who are not likely keen on the idea of creating new law here, of confining impeachment just to things you can find in the criminal code. So in some ways, this is coming down to sort of a muscle play. You know, that the Trump defense is telling the Republican senators, we expect your vote. And the defense is, “This was perfect and also, you can’t impeach a president unless you have a crime.”

Well, I think that there is currently support by four senators to have witnesses. I’m not too sure how that will play out. But once you do cross the rubicon, you’re looking at a much longer trial.

I do. I think witnesses are an unpredictable element. A good example is Clinton. You know, the Democrats lost in trying to block a deposition with Monica Lewinsky. But then they won in blocking her from live testimony. Well, last year, Monica Lewinsky came out and said that Bill Clinton called her after she was named as a witness, talked about her testimony, encouraged her to sign a false affidavit. And if he said that on the floor of the Senate, it would have been a game changer. So these witnesses can be live torpedoes in the water and they can hit anywhere.