The object of any trial under American law is to achieve an impartial and just result. In a trial in the judicial system, jurors take a solemn oath to render a true verdict “according to the law and evidence.” That would be practically impossible without sworn testimony from witnesses. Live testimony is important because of what the witness says, but also because of the manner in which the testimony is delivered. Observing the demeanor of a witness can be critical for the jury in determining his or her credibility.
An impeachment trial under the U.S. Constitution has substantial procedural differences from a court trial, but the objective is the same–to achieve a just result. In an impeachment trial, Senators are the jurors. Senate rules require that they take a solemn oath to “do impartial justice according to the Constitution and laws, so help me God.”
It is essential that the upcoming impeachment trial be handled in a fair and impartial manner, allowing both sides to present live testimony and to introduce pertinent documentary evidence. If the case is dismissed in a summary fashion, as some have advocated, or if witnesses who have pertinent information are excluded, those Senators responsible will have violated their juror oath and defiled the constitutional process.
Although the President has called for summary dismissal of the Articles of Impeachment, he has also recognized the necessity for witness testimony. On January 12, Trump tweeted that Representative Adam Schiff “must” be a witness at the trial and that Speaker Nancy Pelosi “should” also testify.
A word of advice to the President on calling hostile witnesses. If a witness is not likely to support your side of the case, it is generally not a good idea to call that person as a trial witness. Those of us who may have done so in the beginning of our legal career have learned from bitter experience that it is a recipe for disaster. You want to call witnesses who will support your side of the case. Schiff and Pelosi are on the prosecution side and, therefore, it would be awkward to bring them forth as witnesses for the defense.
Trump has loudly and repeatedly proclaimed his innocence of the charges and has implied that those close to him in the decision-making process would support his innocence. It would be far better for the President to call those people as witnesses to support his claims of innocence. By putting them under oath and having them truthfully testify, he could clear his name. Senator McConnell and others who vigorously oppose calling witnesses, particularly people like Mulvaney and Bolton who worked closely with the President, are giving the impression that Trump has something to hide. An innocent man should have nothing to hide.
Throughout the proceedings in the House of Representatives, the Republican members were bemoaning the failure to call witnesses favorable to the President. On October 3, 2019, House Minority Leader Kevin McCarthy remarked on Fox News, “Think about if you went before a trial, but you couldn’t call any witnesses.” The trial is now approaching and it looks as if the President may be unable to call witnesses to support his innocence.
The President should step forward to clear his name by asking, no demanding, that his top aides be placed front and center on the list of witnesses to testify on his behalf. In fact, he should demand that he be able to appear as a witness at the trial to personally proclaim his innocence of all charges.
Even though judges counsel juries not to infer guilt just because a defendant fails to testify, there is always the possibility a juror might think it suspicious that an innocent man would not be confident enough to proclaim it to the jury. The President could do himself a favor by taking the stand at the Senate trial and testifying as to all the details of his dealings with the Ukrainian president. That would ensure a just result.