Democrats want to call witnesses for the prosecution at President Trump’s impeachment trial but are cowed by Republicans’ threat to call Hunter Biden as a defense witness if witnesses are allowed. In fact, Democrats should call Hunter Biden themselves.
Republican proposals to conduct a witness-free impeachment are silly. The plain meaning of the Constitution’s text, something the GOP used to care about and that conservatives still do, calls for a trial, not motions for dismissal or summary judgment: “The Senate shall have the sole Power to try all Impeachments … when the President of the United States is tried … ” (emphasis added).
Ducks quack, bears relieve themselves in the woods, the Pope is Catholic — and trials have sworn witness testimony. Trump, in fairness, deserves broad latitude in mounting a defense, including calling witnesses if he chooses. Assuming witness testimony, why should Democrats wait for Trump to call Hunter Biden as a hostile witness?
Trump’s counsels (e.g., Ken Starr) might try to embarrass former Vice President Joe Biden by exploring his son’s licentious love life and lurid substance abuse. While the Federal Rules of Evidence do not strictly apply in an impeachment trial, Chief Justice John Roberts, sitting as a trial judge, might uphold objections to the relevancy, probative value, and prejudicial nature of such salacious questions — although Roberts’ rulings can be overruled by a Senate majority.
Democrats should cut to the chase. Call Hunter Biden, and explore under direct examination whether his Burisma board position was a sham, no-show job, whether he kicked back part of his compensation to his father as a bribe, or whether he asked Joe Biden to take official actions related to Ukraine in return for something of value.
Were there evidence that such crimes took place, Trump allies would have sought out complaints asking the fraud and public integrity sections of FBI field offices and U.S. attorney’s offices to look into them. Trump-appointed U.S. attorneys supervised by Justice Department political appointees would have supervised such investigations, assisted by legal attaches abroad.
Anything can come out at trial, but at this point, there probably is no such evidence. This is likely why Trump and his outside counsel Rudy Giuliani cajoled Ukraine to get Kyiv to announce, not actually conduct, just publicize, an investigation, rather than having U.S. federal law enforcement quietly probe the matter.
A refutable but reasonable assumption is that Trump did this to dirty up the front-runner for the Democratic presidential nomination. Far from spearheading anti-corruption efforts abroad, sometimes claimed as the justification for the call between Trump and Ukrainian President Volodymyr Zelensky, this administration has actually considered repealing the pertinent law, the Foreign Corrupt Practices Act.
Democrats fear Hunter Biden’s testimony may harm his father’s campaign. This ought not be a consideration in an impeachment trial any more than how it affects Trump’s reelection campaign is a consideration.
Even if no crime was committed, the Bidens showed extraordinarily poor judgment in allowing their prodigal son to take a board position with a foreign company while his father was in office. If that appearance of a conflict of interest means Joe Biden should not be the next president, so be it. This trial ought to be only about whether Trump committed a high crime while in office.
The second article of impeachment, for the president’s defiance of congressional subpoenas, is premature. The underlying issue, whether administration officials have absolute testimonial immunity due to executive privilege, remains under appellate review — in a case the House of Representatives will likely win. Only defying a final judicial order enforcing a subpoena would, by itself, justify removal from office.
But the first article of impeachment, for the president abusing his powers to solicit Ukraine’s interference in the 2020 election, on his behalf and to his personal benefit, is timely.
This article would have been stronger if the House had cited the relevant federal law 18 U.S.C. § 201: bribery of public officials. Section 201 prohibits public officials from demanding anything of personal value in return for their performance of official acts. Trying to make a foreign government announce an investigation into the president’s political opponent as part of a quid pro quo for sending military aid tracks with this felony statute.
Even if imperfectly pleaded by the House, this alleged misconduct remains a serious charge. These events took place in the context of Russian interference on Trump’s behalf in the 2016 presidential election (although an exhaustive investigation found no evidence of a conspiracy), the president’s statement that he would accept defamatory information about domestic political opponents from foreign governments, and his call for China to investigate the Biden family.
If we allow, much less ask, foreign security and intelligence services to get involved in U.S. elections, we will lose control of our democracy. The articles of impeachment should be fully litigated.
To that end, Democrats should call Hunter Biden to the stand. Let the chips fall where they may.
Kevin Carroll is a contributor to the Washington Examiner’s Beltway Confidential blog. He served as a senior counselor to the Secretary of Homeland Security and the House Homeland Security Committee and as a CIA and Army officer.
