We’ve talked a great deal about perceptions, partisanship and precedent as only the nation’s third Presidential impeachment trial reaches its culmination. Now Senators will cast their votes. Those votes will impact all three of those aspects of the proceedings in the eyes of history.
Senators who believed more evidence was needed and voted for its inclusion in the proceedings should equally be vexed and cautious. Why is simple. If a member of the Senate claims that more witnesses were needed, then they arguably believed that House managers failed to prove the case against the president. If they believe the House managers failed to prove the case and vote to remove Trump anyway, they risk cementing for posterity the overwhelmingly partisan nature of the proceedings.
As a backdrop for this decision, Senators should also consider the following.
House Democrats’ shifting theory of the case from bribery to ‘quid pro quo’ to national security damaged their credibility early on in the process. They rammed through the impeachment vote along an arbitrary political deadline with bi-partisan opposition, abandoning witness subpoenas and then inexplicably stalling delivery of the articles.
Democratic managers, also resorted to fantastic claims with no supporting evidence to bolster their case in the Senate trial, including wild assertions that the president’s actions endangered U.S. national security, left us open to Russian attack, and ensured we can no longer trust the integrity of our electoral system. They claimed President Trump needed to be removed because of a pattern of behavior that the managers claimed without evidence was ongoing.
They claimed that there were no documents and witnesses, which is false on its face. Senators heard relevant testimony from more than a dozen witnesses, nearly 200 video clips and tens of thousands of documents were part of the record.
Democratic managers claimed simultaneously that there was overwhelming evidence to convict the president, but that more witnesses were necessary.
Americans should understand, this wasn’t a trial in the traditional sense and Democratic managers knew that. Americans think of a trial in terms of "Matlock" or "Law and Order." Neither is an apt comparison for an impeachment proceeding in the United States Senate. The evidentiary rules are set by the Senate. The judge, in this case, Chief Justice John Roberts, had very limited ability to exercise control over the process. The jury – the Senators - provided a mere mirage of impartiality.
What was the same was the need for the prosecutors to meet a burden of proof that would rise to such a level that would warrant the removal of the president. While the specific burden of proof for impeachment trials is nebulous, the removal of a president of the United States should clearly prompt a very high bar. Democratic managers, with their shifting theories, non-specific articles and contradictions with respect for the need for new evidence, clearly failed to meet that high burden of proof. It was their responsibility to meet the burden.
Every Senator of any party who voted for more witnesses acknowledged that the managers failed to meet that burden. When prosecutors fail to meet their burden of proof, the jury is right to acquit the defendant – even if they personally believe that there was some form of wrongdoing.
Again, a vote to acquit on the basis that the Democratic managers didn’t meet the high burden for removal is not the same as agreeing the president’s actions were, as he would put it, “perfect.” It would, however, be a slap at House Democrats who upended our entire government for the most partisan and political presidential impeachment in our nation’s history.
It would defy logic to assume that every Senator who voted for more witnesses also believed that the president should be removed without them unless their decision-making was tainted by the kind of partisanship the Framers warned not to indulge in such circumstances.
Senators have a choice to make Wednesday. They can either embrace a rational, reasoned approach or they can prove the Republicans’ point by abdicating their responsibility for political theatrics that seek to only divide the country.