Per Ari Melbar on MSNBC, Mitt Romney just announced that he would vote to hear from John Bolton as a fact witness in the impeachment trial, in other words, a real trial. Obviously, this is a major break in the case and highly favorable to the Democrats.
Trump has always balanced his presidency precariously on the “unanimity” he requires, going to any length to intimidate his party into compliance, lest he banish them from their careers as Republicans. From the beginning, we’ve known that even one or two defections against Trump’s bullying could lead to a dam break. It would seem that each Republican coming out against Trump makes it that much easier for the next one, and the next one, until the process builds on its own momentum.
Perhaps we are there. Because right now, I see a crack in the dam.
There is immense political heat on each Republican senator. Poll after poll affirms that people favor hearing from the witnesses. Adding to that pressure is the likely continuous drip of evidence released to the public into the future, after the trial. The danger that the Republicans let a clear crime go – covered up – hangs over each of them, like a bucket ready to leave them all wet.
If Romney votes to hear from Bolton it is far more likely than not that Murkowski, Gardner and Collins will have to follow along. Indeed, once a few Republicans brave Trump’s rage – and I seriously doubt anyone has seen rage this hot and cutting – it is hard to see how every Republicans won’t be forced to support calling witnesses.
This would be entirely proper, of course.
The United States has had fifteen impeachment trials in our history under the current constitution. All fifteen had witnesses. Mitch McConnell seems intent upon having the first impeachment trial without any witnesses, and indeed it might well be the first trial of any kind without a witness.
By its very definition, a trial involves witness testimony, indeed one cannot have a trial without witnesses. Trials determine contested facts, whether those facts are found by the court or a jury, the only issue at trial is the determination as to which facts are most credible.
That is not to say that legal proceedings are never adjudicated without a trial. Indeed we do it all the time.
If the issue is one in which all parties agree on the facts, but the parties disagree as to the law fitting those facts, we use a procedure called “summary judgment.” In a summary judgment procedure, the judge takes facts that are largely uncontested and adjudicates the matter through motions and briefings. But summary judgment is limited to civil cases, never criminal. While an impeachment is not a criminal proceeding, it is not a civil proceeding within the courts, either.
Thus we’re left to take the most common-sense definition as to what is and what is not a “trial.” I put to you, that one cannot have a trial without witnesses. If the Republicans insisted upon going forward without calling any witnesses, the Democrats should – and likely can – make an argument to Chief Justice Roberts that the Republicans are not following the constitution, by denying the House impeachment managers a “trial” as required.
Additionally, we have that precedent, each impeachment trial in the past included witnesses. Precedent is extremely important in law.
Regardless, it appears that we are about to enter a critical new stage. For the first time – perhaps ever – Republicans must truly consider whether they “trust” that Trump won’t wash them all out together. It appears the first cracks in the dam are forming.
We all know the power and weight of the water held back behind that previously impenetrable wall – the only wall Trump has ever built. Once even a little bit gets through, it is damned tough to stop a flood. Each Republican knows that the reservoir held upstream is deep, likely cold and dark. It also will always push to run out into the open.
Trump may have to move to higher ground, which is always difficult for people most comfortable operating down in the mud, or for lack of a better word, the swamps.
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