Witnesses are Coming (UPDATE: Never Mind)

And illustrations of the fact that this isn't a regular trial.

By now I suspect anyone paying attention is aware that the Senate voted this morning, 55-45, to allow for witnesses.

The vote came after Representative Jamie Raskin of Maryland, the lead impeachment manager, said that Democrats wanted the chance to call Representative Jaime Herrera Beutler, Republican of Washington, to testify. Ms. Herrera Beutler confirmed late Friday evening that Representative Kevin McCarthy, the minority leader, had told her that Mr. Trump said in a phone call during the rampage that the rioters were more upset about the election than Mr. McCarthy was.

Five Republicans voted with the Democratic majority: Susan Collins (ME), Lindsey Graham (SC), Lisa Murkowski (AK), Mitt Romney (UT), and Ben Sasse (NE).

One presumes Graham voted “aye” so that he could attempt to call pro-Trump witnesses, as he threatened to do on Fox News recently if the door was opened.

The witness, Representative Herrera Beutler witnessed the phone call between Minority Leader McCarthy and Trump during the insurrection that James Joyner wrote about this morning.

The question as to how many witnesses and the process of dealing with them, is an open one. As the USAT write-up notes:

Now the Senate must decide how many witnesses to call and under what rules. Senate Majority Leader Chuck Schumer, D-N.Y., recessed the trial while lawmakers debate which steps to take.

Under the resolution the Senate adopted for the trial, after allowing any witnesses, the Senate must decide whether to issue subpoenas, how to arrange depositions and whether other research is needed. Those rules would be governed by another resolution in the Senate, which would require another vote.

So, despite the Trump defense team’s threat to call 100 witnesses or Graham’s threat to do something similar, I don’t think this vote will lead to a torrent of witnesses. At the moment, Raskin is asking for one, and it is likely that out of fairness, the defense will get one. Of course, this could spiral, but we shall see.

Regardless, again, this shows how this process should not be talked about like it is a trial in a court of law.

First, the utter backwardness of this is striking. Arguments have been made and the Senate was set to vote, and now, all of sudden: witnesses! In an actual trial, there would have been full discovery and the ability of both sides to assemble witness lists.

Second, it wouldn’t be up to the “jury” to decide whether or not to call witnesses, let alone how many.

There is also this instant classic of a clip from earlier this morning:

Van der Veen’s assertion of “that’s civil process” is a joke, because this isn’t a civil procedure. He is not actually acting as an attorney in a court of law as he stands in the Senate. Worse, his statement just prior to that, “I don’t know how many civil lawyers are here, but that’s the way it works, folks” was laughable. He is erroneously telling the collected United States Senate that they are bound by civil procedure when they all full well know that the US Constitution clearly states that they have ” the sole Power to try all Impeachments” (emphasis mine). They can proceed however they wish and are only bound by the Senate’s rules on this subject (and, ultimately, by the interpretations of the majority).

I can’t decide if van der Veen is just so ensconced in his lawyer’s paradigm and arrogance that he is forgetting where he is and what he is doing or if he really doesn’t understand.

When he says things like this, however, he is spouting hot air (via USAT):

“I’m gonna slap subpoenas on a good number of people,” Trump lawyer Michael van der Veen said, adding he would like to hold 100 depositions if any witnesses are called.

“Do not limit the number of witnesses that I can have,” he said.

The number of witnesses isn’t up to him. He can’t slap subpoenas on anyone without the direct permission of the Senate. And they will almost certainly limit the number of witnesses he can have. He simply isn’t in a court of law.

Update: Since I got tired of listening to speculation about the trial, I stopped listening to NPR’s coverage, wrote this post, and was away from the computer for a few. For reasons I have not seen yet, the Senate has decided to proceed without witnesses.

FILED UNDER: Donald Trump, Impeachment, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. Sleeping Dog says:

    Logically, after calling Beutler, Murphy should be called. If Trump’s lawyers don’t call him, that would indicate that Beutler’s testimony is accurate. If Trump’s attorneys don’t subpoena Murphy, then the Dems should.

    David Frum is particularly brutal on Trump’s defense team.

    1
  2. Teve says:

    they’re up to 301 now, because morons.

    3
  3. Kathy says:

    If this person were in a court of law, no judge would allow him to call a mile-long list of witnesses not relevant to the matter at hand.

    4
  4. Teve says:

    @Sleeping Dog:

    The Trump administration was staffed from top to bottom by people who were bad at stuff: the Scott Pruitts at the Environmental Protection Agency; the Richard Grenells and John Ratcliffes at the Office of the Director of National Intelligence; the Matthew Whitakers at the Department of Justice; the Michael Flynns at the National Security Council; the Sebastian Gorkas, Jared Kushners, and Ivanka Trumps on the White House staff.
    The administration’s incompetence frequently arose from its malice. That was the coronavirus story: Trump interpreted the pandemic as a criticism of himself, and dealt with the pandemic the way he habitually dealt with criticism: by refusing to acknowledge its existence. But as often as not, the incompetence was just and only that, the blundering that resulted from people in over their heads holding positions they should never have held.

    Yep.

    3
  5. Mikey says:

    @Sleeping Dog:

    David Frum is particularly brutal on Trump’s defense team.

    Frum seems a bit incredulous:

    I watched this self-pity party from my own house, only a few miles north and west from the Capitol attacked by a Trumpist mob on January 6. And I thought: How on earth could a former president of the United States possibly have hired a team of boobs this bad at law?

    Well, David, it’s because none of the non-boobs actually good at law will debase themselves by working for him.

    6
  6. @Kathy: Indeed. But they would have the ability to call a lot more than whatever rule on the matter the Senate is likely to adopt.

  7. Teve says:

    @atrupar

    “That’s the way it works, folks … I don’t know why you’re laughing … there’s nothing laughable here” — the Senate chamber breaks out in laughter after van der Veen threatens to depose Nancy Pelosi and Kamala Harris not by Zoom, but in his office in Philadelphia

    LOL dumbass

    3
  8. Bob@Youngstown says:

    @Sleeping Dog:
    Do you mean McCarthy?
    IMO, some part of the anger and frustration that Trump rally attendees was founded in the absence of truth that the election was lost fairly and honestly.
    Not knowing the truth of Trump’s contemporaneous reaction to the attack on the Capitol, will just continue to fuel Trump supporters.

  9. CSK says:

    @Mikey:
    Frum goes on to say that Trump doesn’t care whether his lawyers are competent in this instance, because the outcome is fixed.

    He also mentions that Trump values pugnacity in an attorney over competence. “He fights!”

    2
  10. Sleeping Dog says:

    @Bob@Youngstown:

    Yes, McCarthy. Confusing my Irishmen.

    1
  11. DA says:

    So much for that. No witnesses. So f***ing discouraging.

    6
  12. Teve says:

    @chrishayes

    I think they should absolutely pause the trial and depose witnesses. As many as they need! But In the end, basically everyone wants this over, because literally no matter what was found R’s are going to vote to acquit and time is precious. That’s the long and short of it.

    2
  13. CSK says:

    Jaime Beutler Herrera’s statement will be inserted into the record. That’s all. No witnesses.

    Kevin McCarthy must be breathing a sigh of relief.

    1
  14. Gustopher says:

    Update: Since I got tired of listening to speculation about the trial, I stopped listening to NPR’s coverage, wrote this post, and was away from the computer for a few. For reasons I have not seen yet, the Senate has decided to proceed without witnesses.

    I’m laughing with you, not at you.

    2
  15. Owen says:

    @Steven L. Taylor:

    I can’t decide if van der Veen is just so ensconced in his lawyer’s paradigm and arrogance that he is forgetting where he is and what he is doing or if he really doesn’t understand.

    Maybe I’m just naïve, but I’m pretty sure van der Veen is an adept enough performance artist that he knows what he is saying. I’m sure his folksy pronunciation of Philly-Delphia has been used by him in numerous courtrooms to get a chuckle, allowing him to indignantly state: “I don’t know why you are laughing.”

  16. @Gustopher: Sigh. Sadly, laughing isn’t my mood at the moment. 😉

    It is amazing to me that they would vote to allow witnesses and then revert so quickly. At a minimum, it is shocking to see the Senate act this fast on anything.

    But beyond that: it is truly amazing for them to vote for witnesses and then pull back. Voting against witnesses is one thing, but voting to have them and then pulling back is just incredible.

    2
  17. Mikey says:

    @CSK:

    Jaime Beutler Herrera’s statement will be inserted into the record. That’s all. No witnesses.

    Kevin McCarthy must be breathing a sigh of relief.

    The Democrats never miss an opportunity to miss an opportunity.

    7
  18. Mikey says:

    Tom Nichols
    @RadioFreeTom

    Democrats, you just got witnesses. You’re going to fold? Honestly, maybe Trump deserved another term, just to teach you a lesson.

    1
  19. CSK says:

    @Steven L. Taylor:
    The only explanation I can find so far for this is that the Democrats want the trial to end quickly. Why? You prolong the trial, you prolong the opportunity to reveal Trump’s true loathsomeness, even if he is acquitted.

    4
  20. @CSK: As I try to sort it out it seems that the GOP was willing to go full obstructionist on Biden nominees and Coivd relief (and I think the Dems just want this over with).

    Ultimately, I guess this is just capitulation to the fact that nothing really matters and the process is going to ends in acquittal no matter what.

    2
  21. Mikey says:

    Apparently the Republicans said they would block both COVID relief and all Biden nominees if witnesses were called and the trial prolonged.

    You know what? Fuck them. The moment they said this, the Senate should have paused the trial and the Democrats plus VP killed the filibuster. Then, call witnesses, and when the trial’s over and GOP scumfucks try to block Biden’s agenda, Democrats plus VP ram it through 100%.

    I’m so fucking sick of the Republicans getting away with fucking murder (literally) while the Democrats are the play-nice-compromise party. FUCK. THAT. The gloves need to come off before the GOP gerrymanders any possibility of America finally joining the 20th century out of existence.

    7
  22. Just nutha ignint cracker says:

    @DA: “We The People[tm]” already know about what Hererra-Beuler would be testifying about, and the GOP Senate doesn’t care. Aside from theater, no witnesses isn’t a set back, it’s a nothing burger. As for me, I’m already passing on the theater now.

    3
  23. @Owen: Very possibly. On the other hand, the general quality of Trump employees is so bad it is hard to know.

  24. @Just nutha ignint cracker: This is a fair position.

    Intellectually I know that the case has been more than made and that additional evidence would not be enough to sway enough Reps to convict. As such, further action is a waste of time (save for whatever effects it would have on the public. But, along those lines, it isn’t like the public hasn’t seen Trump in his full glory–so I doubt many of those minds would change, either).

    2
  25. CSK says:

    @Steven L. Taylor:
    I can’t say I look forward to Trump and his Trumpkins loudly proclaiming that he’s been “found innocent” when this is over.

    2
  26. Mikey says:

    @Just nutha ignint cracker:

    Aside from theater, no witnesses isn’t a set back, it’s a nothing burger.

    It would have been a nothingburger if the Democrats hadn’t won the actual vote to call witnesses and then caved almost immediately.

    Now it’s just another sad instance of Democrats snatching defeat from the jaws of victory.

    1
  27. CSK says:

    The Trumpkins are proposing that Nancy Pelosi put the kibosh on the witnesses because she’s terrified to testify.

  28. Moosebreath says:

    @Mikey:

    “Now it’s just another sad instance of Democrats snatching defeat from the jaws of victory.”

    Entirely serious question — what was the Democrats’ victory? Hearing witnesses which were going to change the minds of none of the Senators, and likely at most the minds of a rounding error of our citizenry? And to get that they would need to delay the far more important work Congress needs to do?

    4
  29. Mikey says:

    @Moosebreath: If they’d never suggested witnesses, or if they’d negotiated it and then agreed on what ended up happening anyway without holding a vote, then fine, that’s how it would have gone. It would have been just as Igint said: a nothingburger.

    But pushing for witnesses, then holding a vote, then winning the vote, then…”never mind?” That just looks feckless.

    1
  30. Mikey says:

    The Hoarse Whisperer
    @TheRealHoarse

    People need to process this:

    Mitch McConnell will always obstruct. Always. Avoiding a showdown today is a surrender. It does nothing but force Dems to face the same phenomenon tomorrow.

    Put on your grownup pants. There will be no progress until Dems wield power without fear.

    2
  31. dazedandconfused says:

    @Mikey:

    It wasn’t a pure “nevermind” they got the defense to stipulate what Beutler said was true, so there is no need for cross examination. That point sets Trumps lack of action to stop the riot in cement.

    It’s not assured that extending the process increases the chances of impeachment, the entire Senate is held hostage by this process, but more than that, it would inspire defensiveness in the Rs who may otherwise be wavering. I can’t imagine anything more damning than sitting by and letting it happen, now that has been stipulated, what more is there to got?

    If the Rs are to take this plunge, that of taking on the Trump mob, I wouldn’t want them subjected to weeks of pressure from that mob myself.

    1
  32. dmichael says:

    @dazedandconfused: This. It is now locked in that Trump did nothing to call off his mob while they were banging on doors and terrorizing members, staff and workers in the Capitol. McCarthy can’t attempt to contradict Rep. Herrera and Repub Senators are going to face voting to acquit in the face of this evidence. Raskin is hammering this (or will hammer this) in his closing.

  33. Mikey says:

    @dazedandconfused:

    It wasn’t a pure “nevermind” they got the defense to stipulate what Beutler said was true, so there is no need for cross examination.

    All they stipulated to was that Beutler-Herrera would have testified consistent with her written statement. They won’t stipulate to the truth of it.

    Whatever, it’s done now.

  34. Gustopher says:

    @dazedandconfused:

    It wasn’t a pure “nevermind” they got the defense to stipulate what Beutler said was true, so there is no need for cross examination. That point sets Trumps lack of action to stop the riot in cement.

    Text entered into the congressional record just goes there to die.

    The only way things are seen as true is with video these days. The Democrats “won” this point, but ultimately the point doesn’t count.

    1
  35. Kathy says:

    The Democrats should do exactly as Trump claimed, through his lawyers, as part of his defense, and charge him criminally with sedition.

  36. Michael Cain says:

    Did the decision to not call witnesses come before or after McConnell’s e-mail to his caucus that he would vote to acquit on the constitutionality issue? That pretty much provides the cover the Republicans need: “Like the majority leader, I believe the proceeding is unconstitutional. Like the majority leader, I vote to acquit on that basis.”

  37. Scott F. says:

    @Just nutha ignint cracker:
    I’m with you. The Senate Republicans will vote to acquit and Trump will claim exoneration. This was a fait accompli as soon as the House voted to impeach.

    The trial in the court of public opinion will continue for months and witnesses will be heard. This trial was never about convincing 17 GOP Senators to find their spines. It was about getting the facts on the record and the votes to acquit on the record. Now comes the work to hold the acquitters to account on the Sunday shows and on the editorial pages, then ultimately at the ballot box. There’s nothing to do about the Senators in safe red seats, but the purple seats are all in play now.

    1
  38. dazedandconfused says:

    @Gustopher:

    True, but IMO Machiavelli is now calling the shots, not legalisms.

    Trump unleashing his mob on Pence means he would unleash it on any of them. This will certainly count in the functional belfries within the group, the question is only how much. The number of Senators who have been only faking their Trump-allegiance is an open question.

  39. Kurtz says:

    @Steven L. Taylor:

    Trump in his full glory

    This is poetic.

  40. Pylon says:

    @Mikey: It’s so stipulated, but also unrebutted. If she’d testified, there’s a possibility that, as a Republican, and under pressure, she may have walked it back or diminished it. For a lost cause on conviction, it’s a decent result.

    2
  41. Just nutha ignint cracker says:

    @Mikey: I guess I’m more passionately ambivalent about Democrats demanding their nothing burger than others.

  42. Just nutha ignint cracker says:

    @Gustopher: I actually got to see the video of the gang in the tent watching the riot while Don Jr. and Skanky were dancing to “Gloria” playing in the background. Don’t think many minds were changed.

    “Feel your innocence slipping away/don’t believe it’s coming back soon.”