We recently talked about how the Senate must decide whether to call witnesses in the second impeachment trial of former President Donald Trump. The use of a quick impeachment process provides a basis for some senators to oppose such witnesses for institutional or regulatory reasons. Democrats opposed all witnesses to the Clinton impeachment, and there were no witnesses in the first Trump impeachment trial. Unsurprisingly, the House is calling for witnesses. The first vote in the trial reveals that the number of senators required to convict is severely lacking and that Trump could be acquitted in a 50:50 virtual vote. Here is my question: why has the House not used the past few weeks to call these witnesses and work out the necessary case to show an intention to start a riot? Weeks have passed with key witnesses speaking to the press but not to the House. Why?
I raised this possibility weeks ago because such House hearings could affect the Senate trial. Even if the transcripts were blocked by the Senate, the Senators would be aware of the evidence and testimony. There is limited evidence of the response to the uprising, but most of the key witnesses were not called to public hearings on evidence related to Trump’s behavior or intent. Many are clearly ready to testify as they speak openly to the media.
I have no idea if such evidence exists, but like most Americans, I would like to know if it does. I was critical of Trump’s speech as he made it. I also declined to challenge the election votes and criticized the President’s false statements about Vice President Mike Pence’s authority to “send back” those votes. However, I have also said that this incitement case would fail without evidence of intent in the Senate. While many legal experts have argued that this is a strong argument for criminal incitement, I believe that it would ultimately break down for freedom of speech in federal courts.
The House can show its intent directly and awkwardly using evidence of the President’s conduct and statements made before and after the speech. The deployment of the National Guard is clearly a starting point. Has Trump delayed or hindered the deployment? We still don’t know, although this is one of the easiest questions to answer. These questions are not answered by calling the “shaman” whether he feels that Trump wanted him to get upset or get involved in a riot. Such testimony will show how Trump’s words were received (which is relevant), but not what he intended.
There is a tendency in Congress to obey the rule of law and not ask witnesses questions to which you do not know the answer beforehand. However, the lack of hearings on Trump’s role is blatant as the property managers claim that many in the Senate do not want to hear the truth. There are two houses of Congress and the Democrats have complete control of the house.
There have been clear inquiries and limited statements, but very little information has been made public, including information that is clearly owned or available to the House. Instead, reports suggest that the House is building what it has termed an “emotionally charged” case in front of the Senate with cell phone calls and testimony rather than evidence focusing on the element of intent. I admit that I have the prejudice of a criminal defense attorney, but that is no cause for conviction. It is a case of public appeal.
This question is even more conspicuous in light of public statements by key witnesses such as former Acting Secretary of Defense Chris Miller and his two closest associates, Kashyap “Kash” Patel and Ezra Cohen. Miller says Trump told him “you will need 10,000 people” the day before the uprising. Miller added, “No, I’m not talking about bullshit. He said that. And we say, ‘Maybe. But you know someone will have to ask about it. “He said Trump replied,” You do what you have to do. You do what you have to do. You will need 10,000. ‘”
This report shows that Trump knew there could be problems with the rally the next day. Many expressed the same concern. However, it also shows Trump’s warning that troops would be needed. The question is whether he did anything to prepare for such a deployment or to disrupt or delay the deployment. Witnesses like Miller would know. They do give interviews, however, but no public testimony under oath.
The House held hearings on the riots, but those hearings seem oddly tailored to avoid core issues related to the process. For example, U.S. Capitol Police chief Yogananda D. Pittman testified but did so in a closed session. She reportedly apologized to Congress “and the American people” for the apparent security flaws on Jan. 6. She also said that they were aware of the danger of a riot beforehand but did not take adequate steps. “Let me be clear: the department should have been better prepared for this attack.”
Major General William Walker, the commanding general of the DC National Guard, has also given interviews and stated that the deployment of his troops has been delayed by more than an hour because he needs approval from the Pentagon. He said that he was normally authorized to use without authorization. If that’s true, why wasn’t he asked to testify in the House to explain the schedule and whether the authority was removed specifically for that day?
Much information is in the hands of Congress regarding requests for engagement and interaction with the Trump administration. There are records and other sources of evidence that are not witnesses and that can also be used to create a record. However, the House has called the witnesses that it would like to hear in the Senate, comparatively passively. Again why?
This is the same pattern as when Trump was first impeached, when the House waited for weeks to request witnesses who could have called or summoned before the House Judiciary Committee. It did nothing and then denounced the lack of evidence on key issues. Both trials were deliberate and without such evidence the House could not expect to prevail. It was like a case of planned obsolescence building a case to collapse.
By my count, there are at least ten key Witnesses who have spoken publicly or would be easily available, including Miller, Walker, Pittman, Patel, Cohen, and others. However, there is nothing but barbecuing out of the house.