The Personal Website of Mark W. Dawson

Impeachment – Senate Trial IV

The new battle cry at the Impeachment of President Trump is the call for new witnesses. The Democrats' reasoning for new witnesses is for the facts and truth needs to be revealed. The Republicans' reasoning against new witnesses it is not their responsibility to investigate, only to make a judgment on the facts presented. As usual, both sides have gotten it wrong. The real battle is “are the Articles of Impeachment against President Trump Constitutional as Professor Dershowitz has laid out in his testimony? “

If the Senate believes that the articles are unconstitutional then-new witnesses are not needed as there is no need for witnesses, for or against, an unconstitutional impeachment. Only if the Senate determines that the impeachment is constitutional does the question of new witnesses become germane.

If the Senate determines that the articles of impeachment are constitutional the question is then if it is the responsibility of the Senate to allow new witnesses? Never in any past impeachment has the Senate called new witnesses. The only witness testimony in the Senate in the past impeachments (both Presidential and Judicial) has been by witnesses who have testified at the House impeachment hearings, or who’s testimony by other means (such as judicial and/or executive investigations) that were submitted to the House impeachment hearings. It is unprecedented for the Senate to accept new witness testimony. If the Senate should decide to break this precedent than it becomes harmful to the balance of power between the Senate and the House. Impeachments would become much easier for the House to lodge, and the Senate trials would become much more complicated and time-consuming.

If any new witnesses at the Senate are allowed then all new witnesses that are germane must be called. For if the Senate objective is the discovery of the facts and truth of the impeachment articles than the truth, the whole truth, and nothing but the truth must be revealed. This would require Due Process and the Rule of Law to be observed in the testimony of new witnesses. All new witnesses that are germane need to be called, as well as witnesses that would contravene the new witness testimony would have to be admitted for the facts and truth to be revealed. This would prompt legal challenges to the subpoenas and testimony that the Judicial branch would have to adjudicate. This would result in delaying the Senate trial for weeks or months to resolve these legal challenges.

There also could be no “Horse Trading” of witnesses if your objective is to gather all the facts and reveal the truth. Any and all new witnesses that are necessary to reveal the facts and the truth would be required. To limit the number of new witnesses would place limitations on the rights of the accused, which is in itself unconstitutional. The only duty of the Senate is to determine if the new witness testimony is germane to the impeachment. If it is germane, then all new witness testimony should be permitted.

You cannot utilize the Rules of the Senate to limit new witnesses, as the Constitutional Rights of the accused cannot be limited by any Senate rules. For the primary duty of the Senators is to “Preserve, Protect, and Defend” The Constitution of the United States. Not only the words of the Constitution but the spirit of the Constitution as I have written about in another article “The true meaning of the Senate vote on the Impeachment of President Trump”. Therefore, no Senate rules that constrict the rights of the accused are constitutional, and the Senate cannot do anything that is unconstitutional.

All these issues could have been resolved if the House had conducted a proper and constitutional impeachment hearing. As they have chosen not to do so we now have a constitutional crisis to resolve these issues. The political inconvenience of the House not following its own precedents, and not abiding by Due Process and the Rule of Law, has led to this crisis. A crisis that need not have been encountered if the House had followed its own precedents in conducting an Impeachment hearing.

The only proper way to resolve this crisis is for the Senate to dismiss the House Articles of Impeachment of President Trump as unconstitutional. And a dismissal of these House Impeachment articles is in order as they are unconstitutional. The Senate should require that the House follow constitutional principles and its own precedents on impeachments. Constitutional principles of Due Process and the Rule of Law when conducting any future House impeachment hearings, or if not any future House impeachments that are unconstitutional will be dismissed by the Senate. The Senate must explicitly state these principles when dismissing the House Articles of Impeachment of President Trump to thwart future unconstitutional House impeachments, as well as burdening the Senate with unconstitutional impeachments in the future. For this is the only Constitutional means to Constitutionally impeach anyone.