Weighing the Evidence Against the President

The facts aren’t on their side, so House Republicans complain about the process.
December 10, 2019
Featured Image
Steve Castor (left) and Daniel Goldman, respectively counselors for the House Intelligence Committee’s minority and majority, are sworn in during a House Judiciary Committee hearing, on December 9, 2019. (Susan Walsh / AFP / Getty)

Ever since the House Intelligence Committee began its public impeachment proceedings in mid-November, each day of hearings has proceeded toward the same goal: Democrats on both the Intelligence and Judiciary committees compiled facts and expert legal analysis to make the case—with the nation watching on live television—that the president of the United States needed to be removed from power.

Monday was different.

The Judiciary Committee hearing on Monday was structured as a sorta, kinda, almost criminal trial. The first pair of witnesses—one each for the Republicans and the Democrats—gave opening statements, offering an overview of the evidence and laying out their respective theories of the Ukraine scandal. The two lawyers who had helped the Intelligence Committee question witnesses—Steve Castor for the minority Republicans and Daniel Goldman for the majority Democrats—each now appeared as witnesses themselves, as part of the process of formally conveying that committee’s findings to the Judiciary Committee.

The proceedings got off to a very strange start. Instead of having Goldman deliver opening remarks, the Democrats had Barry Berke—a lawyer for the Judiciary Committee majority—make an opening statement. Then, Berke left the witness table, relinquishing his seat to Goldman, and hopped up to the dais where he helped the Democrats question both Castor and Goldman. It’s hard to think of a precedent for this bizarre now-a-witness, now-a-questioner maneuver. It certainly wasn’t necessary: Goldman could easily have delivered the remarks that Berke read out. And the highly abnormal situation was made only more messy by Judiciary Committee Chairman Jerry Nadler’s heads-I-win, tails-you-lose interpretation of the rules.

Republicans on the committee predictably made a great fuss about the impropriety of Berke serving as both a witness and a member of the committee staff. They added this complaint to their mountain of other gripes about the process and rules of the impeachment hearings. When the facts aren’t on your side, make procedural complaints: Apparently the president’s best defense hinges on what is or is not a valid parliamentary inquiry.

Several Republican members complained that the committee was hearing second-hand evidence rather than direct testimony from fact witnesses. Yet they also complained that Intelligence Committee Chairman Adam Schiff didn’t show up to be questioned—even though he wouldn’t have been a fact witness, either.

And they voiced no complaints when Castor speculated about President Trump’s and others’ motivations, despite his not being a fact witness. Colorado Republican Ken Buck even asked Castor if he had any evidence that Intelligence Committee Democratic staffers had met secretly with U.S. Ambassador to the EU Gordon Sondland between his deposition and public testimony. When Castor said he didn’t know, Buck found this lack of evidence sufficient to conclude that the majority staff had somehow convinced Sondland to change his testimony.

The hearing Monday was a procedural mess from the start, but it didn’t have to be.

Impeachment is a political process with some judicial-like rules. The House of Representatives acts as a quasi-grand jury, ultimately charging (or deciding not to charge) the president. Only then does the Senate hold a trial to adjudicate the allegation(s) and consider punishment. In keeping with that very loose judicial analogy, it is worth taking a moment to think about the evidentiary standards that each side seems to have in mind. It makes sense for the Democrats to aim for the highest possible evidentiary threshold they can clear. Put another way, they don’t want to establish just probable cause, they want to be able to show beyond a reasonable doubt that the president abused the powers of his office.

For their part, the Republicans, instead of arguing that the Democrats have failed to provide sufficient evidence for impeachment, have asserted that there isn’t sufficient evidence to merit removal. President Trump’s supporters have invented an explanation for his actions that is plausible, but outlandish. It goes roughly like this: The president cares acutely about corruption in exactly one country in the world, so he singled out that country to conduct investigations into possible corruption by the son of his political rival, but then some of his aides got confused and thought it was a quid pro quo even though it totally wasn’t.

To return to our judicial analogy, that might be enough to create reasonable doubt, but it isn’t enough to not bring charges.

Because the outcome of the Senate trial is all but assured, both sides are treating the process in the House as if it’s the whole game. Constitutionally, it’s not.

The Democrats clearly have enough evidence to impeach—and more importantly, they have the votes. Monday’s hearing accomplished nothing except setting a confusing and deleterious precedent for the next impeachment—which, if current trends continue, won’t be far off.

Benjamin Parker

Benjamin Parker is a senior editor at The Bulwark.