Republicans have spent the impeachment trial alternatively arguing that the House had not produced enough evidence to prove its case, and that more evidence is unnecessary. Last night, they introduced a novel new argument: It would be pointless to introduce more evidence, because the White House will simply block it in the courts. “A growing number of Republicans are pointing to President Donald Trump’s threat to invoke executive privilege in order to make their case against subpoenas sought by Democrats for key witnesses and documents,” reports CNN.
There are several remarkable things about this new rationale. First, Republicans have spent days lambasting Democrats for refusing to let the courts to exhaust every last Trump appeal. (Jay Sekulow: “The president’s opponents, in their rush to impeach, have refused to wait for judicial review.”) They deemed the House impeachment proceedings a “shoddy work product” for this reason, but are now prepared to argue that it’s too late and they can’t fix it.
Trump himself is arguing that the House had too few witnesses — because he blocked them! — but that the Senate should not try to get those witnesses, because “they had their chance.”
Second, the fatalistic assumption that Trump can block any new evidence is probably wrong. John Bolton, for one, has offered to testify (and, as a former White House employee, cannot be blocked). Some experts argue that, as a matter of law, the Senate is in a stronger position than the House to swiftly compel documents and testimony Trump has blocked. In any case, if the Senate wants to at least try to get more evidence, it can give the process a few weeks. There’s no reason to throw in the towel before even trying.
It is true, of course, that Trump will continue to withhold as much evidence as he can, as long as he can. But this raises a third point about his lack of transparency: Doesn’t it make Republican senators question his protestations of innocence? After all, Trump is very much not conceding that he pressured Ukraine to undertake ordered-up investigations. His defense does not merely say his actions don’t merit removal — it denies the key factual predicate of the articles of impeachment. Republicans in Congress have dutifully followed his argument, yet Trump is blocking all the relevant evidence. Doesn’t this bear upon his underlying guilt? Why is he withholding access to documents and witnesses that would presumably exculpate him?
And finally, bear in mind that refusing to cooperate with any investigation is one of the things Trump is charged with in one of the two articles of impeachment. Trump’s blanket rejection of any legitimate oversight role for Congress, and his calculation that he can withhold all evidence on every investigation of his administration and run out the clock is the second high crime.
Republican senators are saying the first crime hasn’t been sufficiently proven, but they can’t get the evidence that might prove it, because Trump will drag it out too long. Every Republican argument for refusing to convict Trump simply takes his bad faith as a background fact, and focuses all the scrutiny on the way other actors have dealt with it. What are you gonna do? The guy is obstructing Congress. Sure, we could try to get more testimony against John Gotti, but Gotti will probably just bribe or murder all the witnesses. Might as well end the trial quickly and vote not guilty.