Se­nate can grill Bi­dens, whistle­blow­ers

The Washington Times Weekly - - Politics - BY STEPHEN DI­NAN

Former Vice Pres­i­dent Joseph R. Bi­den and his son Hunter could be forced to tes­tify if the Se­nate ends up hold­ing an im­peach­ment trial of Pres­i­dent Trump, say con­gres­sional aides who ques­tioned whether Democrats have thought through the full im­pli­ca­tions of their im­peach­ment drive.

Mr. Bi­den could be forced to be in Wash­ing­ton at a crit­i­cal mo­ment in the presidenti­al cam­paign, and so could many of his chief ri­vals — the half-dozen sen­a­tors also vy­ing for the Demo­cratic presidenti­al nom­i­na­tion, an­a­lysts said.

For that mat­ter, if the House im­peaches Mr. Trump on charges stem­ming from the spe­cial coun­sel’s Rus­sia in­ves­ti­ga­tion, aides said, it could open the door to wit­nesses such as fired FBI agent Peter Str­zok and even ma­jor fig­ures from the Obama ad­min­is­tra­tion.

Mr. Trump could even be present for the spec­ta­cle. An­a­lysts said the Se­nate would have a hard time re­fus­ing the pres­i­dent if he de­mands to con­front the wit­nesses tes­ti­fy­ing against him.

“I don’t think the Dems have thought this through at all,” one staffer told The Wash­ing­ton Times.

Democrats have con­trol of im­peach­ment in the House, where it takes only a ma­jor­ity vote to pass ar­ti­cles of im­peach­ment, which are ef­fec­tively a po­lit­i­cal in­dict­ment.

Speaker Nancy Pelosi in­sists she has not made up her mind, but she and her troops ap­pear to be rush­ing to­ward im­peach­ment. Should the House take that step, then the mat­ter would go to the Se­nate, where a trial would be held with the sen­a­tors sit­ting as a jury. It takes a two-thirds vote to con­vict and oust the pres­i­dent.

Repub­li­cans have a ma­jor­ity in the up­per cham­ber, giv­ing them full con­trol over what an im­peach­ment trial would look like.

Over the course of nine pages, the Se­nate Man­ual lays out some guide­lines. All sen­a­tors take a spe­cial oath of duty for the trial, the U.S. chief jus­tice pre­sides and wit­nesses can be com­pelled to tes­tify.

Sen. Lind­sey Gra­ham, South Carolina Repub­li­can and chair­man of the Se­nate Ju­di­ciary Com­mit­tee, said that Repub­li­cans would force the whistle­blow­ers who have ac­cused Mr. Trump of im­proper be­hav­ior in his phone call with the Ukrainian pres­i­dent to tes­tify pub­licly.

He also sug­gested that Rep. Adam B. Schiff, the Cal­i­for­nia Demo­crat whom Mrs. Pelosi has spear­head­ing the im­peach­ment push, could be­come a wit­ness in the Se­nate trial given rev­e­la­tions that he hid in­ter­ac­tions with one of the whistle­blow­ers.

Jonathan Tur­ley, a law professor at George Wash­ing­ton Univer­sity who was part of the de­fense team for a 2010 im­peach­ment of a fed­eral judge, said much of what a trial looks like would de­pend on the ar­ti­cles the House passes.

If the fo­cus is on Mr. Trump’s at­tempt to have Ukraine in­ves­ti­gate the Bi­dens, for the vice pres­i­dent’s role in get­ting a prose­cu­tor fired and pos­si­bly pro­tect­ing his son’s business deal­ings there, then the two men might ex­pect to have to tes­tify.

“If Trump is im­peached on the Ukrainian call, the Bi­dens would be fair game, par­tic­u­larly Hunter,” Mr. Tur­ley said. “While I do not agree that the ev­i­dence sup­ports the al­le­ga­tion against Bi­den in push­ing the ter­mi­na­tion of the pros­e­cu­tion, there is lit­tle ques­tion that the Hunter Bi­den deal smacks of prof­i­teer­ing on his fa­ther’s po­si­tion.”

Pro­ceed­ings could get even cra­zier if ar­ti­cles of im­peach­ment in­clude the spe­cial coun­sel’s in­ves­ti­ga­tion into Trump be­hav­ior con­cern­ing Rus­sia.

Mr. Tur­ley said that could give Mr. Trump a chance to raise all the lin­ger­ing ques­tions about de­ci­sions made by Pres­i­dent Obama’s Jus­tice De­part­ment and the FBI. Sev­eral on­go­ing in­ves­ti­ga­tions are ex­pected to find ma­jor fault with how in­ves­ti­ga­tors pur­sued Mr. Trump beyond the al­ready em­bar­rass­ing text ex­changes be­tween Mr. Str­zok and his paramour, former FBI lawyer Lisa Page.

He said that might ex­plain Mrs. Pelosi’s re­luc­tance to pull the im­peach­ment trig­ger over the Rus­sia ac­cu­sa­tions and her in­sis­tence on try­ing to keep ar­ti­cles fo­cused on Ukraine.

“The op­tics of this Se­nate trial could be quite grotesque. You could have the Democrats beat­ing Trump with the Ukraine call, you could have Trump beat­ing the Democrats up over Bi­den,” he said.

The Se­nate faced a sim­i­lar pos­si­bil­ity in 1999, dur­ing the last presidenti­al im­peach­ment trial, when Pres­i­dent Clin­ton be­lat­edly ad­mit­ted to hav­ing had sex­ual en­coun­ters with in­tern Mon­ica Lewin­sky in the Oval Of­fice.

The House passed two ar­ti­cles of im­peach­ment: ly­ing to a grand jury and ob­struct­ing an in­ves­ti­ga­tion.

When the ar­ti­cles reached the Se­nate, then-Sen. Trent Lott of Mis­sis­sippi, the Repub­li­can ma­jor­ity leader, struck a deal with the top Demo­crat at the time, Sen. Tom Daschle of South Dakota, to pre­vent the trial from spi­ral­ing out of hand.

One ma­jor de­ci­sion was to rule out hav­ing wit­nesses tes­tify to the cham­ber.

“I just said, ‘No, I’m ab­so­lutely op­posed to that,’” Mr. Lott told The Times last week as he re­called the dis­cus­sions. “To de­mean the in­sti­tu­tion by such a spec­ta­cle was to­tally in­ap­pro­pri­ate.”

He took se­ri­ous heat, par­tic­u­larly from House Repub­li­cans who had pushed for the im­peach­ment and felt Mr. Lott was ham­string­ing their case.

The former sen­a­tor said the cham­ber would never have 67 votes to con­vict Mr. Clin­ton no mat­ter what he did, so there was no point to a di­vi­sive floor bat­tle. “The ut­most I thought we might could have got­ten were 61 or 62,” Mr. Lott said. That’s not to say there weren’t flare-ups. Sen­a­tors did de­bate whether to have Ms. Lewin­sky pub­licly tes­tify about her en­coun­ters with Mr. Clin­ton. That mo­tion was de­feated by a 70-30 vote.

One of those who voted in fa­vor of the mo­tion was Sen. Mitch McCon­nell, the Ken­tucky Repub­li­can who is now the ma­jor­ity leader, and who will have the most say in what hap­pens if Mr. Trump is im­peached.

“The ma­jor­ity leader has a lot of lee­way, and Mitch McCon­nell knows the rules of the Se­nate as well or bet­ter than any­body I know,” Mr. Lott said. “They could have a vote to just dis­miss [the ar­ti­cles], they could have a trun­cated process that would take a quick look at it and go through votes, or they could go through the process we went through that lasted al­most a month.”

Mr. McCon­nell has said the Se­nate has to take up the mat­ter if the House does im­peach Mr. Trump, though he hasn’t in­di­cated what a trial would look like. A new cam­paign, how­ever, has made clear what the out­come would be.

“The way that im­peach­ment stops is a Se­nate ma­jor­ity with me as ma­jor­ity leader,” Mr. McCon­nell vows in the ad.

Jim Manley, a long­time Demo­cratic staffer who was work­ing for Sen. Ed­ward M. Kennedy at the time of the Clin­ton trial, said bi­par­ti­san­ship de­fined the process.

Early on, Mr. Kennedy, a lib­eral icon, and Sen. Phil Gramm, a con­ser­va­tive cham­pion, voiced sup­port for keep­ing the pro­ceed­ings un­der con­trol and en­sur­ing that the Se­nate wasn’t wounded by the spec­ta­cle. Mr. Lott and Mr. Daschle struck an agree­ment to make good on that sen­ti­ment.

Mr. Manley said he hopes Mr. McCon­nell fol­lows Mr. Lott’s lead, but he is not con­fi­dent.

“Hope springs eter­nal, but the fact of the mat­ter is, for bet­ter or worse, Mitch McCon­nell is no Trent Lott,” Mr. Manley said. “If Sen. McCon­nell wants to have that stain on his record, he’s able to do so.”

One key dif­fer­ence this time is the po­lit­i­cal break­down. In 1999, it was a Repub­li­can­con­trolled Se­nate try­ing a Demo­cratic pres­i­dent with no chance of win­ning the two-thirds vote needed to oust Mr. Clin­ton.

Now it’s a Repub­li­can-con­trolled Se­nate that would be try­ing a Repub­li­can pres­i­dent im­peached by a Demo­crat-con­trolled House that most Repub­li­can sen­a­tors think has gone off the rails. The in­cen­tives to al­low a spec­ta­cle to em­bar­rass Democrats might be too much to re­sist.

Michael Ger­hardt, a con­sti­tu­tional law professor at the Univer­sity of North Carolina and au­thor of “Im­peach­ment: What Ev­ery­one Needs to Know,” said Repub­li­cans will have a lot of lee­way to struc­ture a trial, in­clud­ing rules for wit­nesses and ev­i­dence.

“Democrats could ob­ject, but they’re in the mi­nor­ity and there’s not a lot they can do about that,” he said.

That also likely means the White House will play an out­sized role in call­ing the shots. If the pres­i­dent wants to per­son­ally con­front the wit­nesses, for ex­am­ple, then the Se­nate would be hard-pressed to stop him.

“I ex­pect it’ll be Sen. McCon­nell’s show. But the pres­i­dent might well say, ‘I want to be there. I want to ask ques­tions,’” Mr. Ger­hardt said.

Oth­er­wise, Mr. Trump would be ced­ing the spot­light to his po­ten­tial Demo­cratic presidenti­al op­po­nents. “It will be tele­vised,” Mr. Ger­hardt said. Mr. Lott said the con­ver­sa­tion in Wash­ing­ton ap­peared to take it as a given that House Democrats will pur­sue im­peach­ment. As some­one who has been through the process, he said, he would urge them not to do it.

“My ad­vice would be calm down, shut up and start pass­ing some leg­is­la­tion that’s in the best in­ter­ests of the coun­try,” he said.

“The op­tics of this Se­nate trial could be quite grotesque. You could have the Democrats beat­ing Trump with the Ukraine call, you could have Trump beat­ing the Democrats up over Bi­den.” — Jonathan Tur­ley, George Wash­ing­ton Univer­sity

AS­SO­CI­ATED PRESS

Former Vice Pres­i­dent Joseph R. Bi­den and his son Hunter could be forced to tes­tify in a Se­nate trial if the House votes for im­peach­ment of Pres­i­dent Trump.

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