"New Witnesses" In An Impeachment Trial is Unconstituional

self ^ | January 28, 2020 | Uncle Sham

[Uncle Sham]

The Constitution gives the power of impeachment solely to the House of Representatives. It means that only the House can do the discovery phase of gathering evidence and then putting together Articles of Impeachment to then present to the Senate for the Senate to judge. The Senate can ONLY judge that which the House has constructed and presented. Any witnesses can ONLY be from the witnesses who are included in the Articles presented by the House.

Asking the Senate to help the discovery phase by introducing new evidence at an impeachment trial is the same thing as asking a judge or jury to help the prosecution do it's job in the courtroom. It also would put the Senate in a position of being part of the evidence gathering phase of impeachment that our constitution clearly prohibits as this is only assigned to the House of Representatives. If the House wants new witness testimony, they have every opportunity to get it with the rules that are in place. They can call Bolton to testify IN THE HOUSE, then if they decide to incorporate his testimony into an Article of Impeachment, they are free to do so and then present THAT article of impeachment to the Senate.

In my opinion, if the Senate allows new testimony, Trump's legal team has grounds for getting the entire proceeding thrown out as being unconstitutional.

[Uncle Sham]

I'll point this out as well as it pertains to John Bolton. The House sent him a subpoena to testify, then his lawyers responded that they would challenge it in court, one of the reasons being that because the House had not voted to authorize an impeachment inquiry, the subpoena that had been issued carried no legal enforcement authority and was thus invalid. The House knew they would have lost this appeal and so they removed the subpoena. This begs the question as to why the House then did not charge Bolton with obstruction of justice as they had Trump for basically doing the same thing. The answer is that they knew they had issued a worthless subpoena and would end up losing the legal battle.

Now, they want Bolton to submit to their illegal demands by using the Senate portion of the impeachment process to call "new" witnesses. If Bolton had a legal right to fight the original illegal subpoena, he certainly retains the same right to fight one that if issued by the Senate, would be an unconstitutional one. That legal fight would have to work it's way through the legal process and would take much longer than the Senate wants this to go on. I think this is really what the House wants, to tie up the Senate with this impeachment crap as long as possible.

[Chickensoup]

it needs to be demanded, loudly

[Uncle Sham]

"There's absolutely no rule of law saying there can't be a new witness in a criminal trial."

I disagree. This is not a criminal case. The Senate can only judge the merits of what the House has put together in it's article of impeachment. If Bolton's "new" testimony or evidence is not currently part of the article of impeachment being currently considered, the House must call for Bolton to testify and then if they so choose, build another separate article of impeachment to present to the Senate.

This would be like asking a judge/jury to help the prosecution do it's job during a trial.

[semimojo]

In this particular case, the House is the party responsible for developing any new evidence or testimony and formulating that into it's own article of impeachment

Right, which is most akin to the indictment process in a criminal trial.

Criminal trials introduce new witnesses and evidence all the time that never went to the grand jury.

According to the roles of the impeachment process assigned to the House and Senate, the Senate cannot develop evidence, it can only judge an article of impeachment as delivered by the House

The Senate has the sole right to try the case.

What part of that formulation limits the trial to be something much less than all other trials in our system?

[Uncle Sham]

"What part of that formulation limits the trial to be something much less than all other trials in our system?"

They are not trying a "case". They are judging the merits of whatever case is put forth by the House in whatever article of impeachment is being presented to them. The Senate, as judge, cannot be part of the prosecution effort, of which developing or introducing "new" evidence or testimony would fall. This is a House responsibility alone that the constitution expressly prohibits the Senate from being a part of. They, the Senate, can ONLY consider whatever current evidence that comprises the current article of impeachment before them. Bolton's "new" testimony is not part of the current article of impeachment evidence or testimony. It is off limits to the Senate until such a time that the House presents an article of impeachment that contains it. No one is keeping the House from doing this. They are asking the Senate to do the job assigned specifically to the House by the Constitution. The Senate should refuse.

[Engedi]

But doesn’t the Senate write the rules for an impeachment?

Why is McConnell saying he doesn’t have the majority votes to block calling new witnesses?

[Uncle Sham]

"But doesn’t the Senate write the rules for an impeachment?"

The rules of impeachment are in the Constitution. The House does the impeachment. The Senate judges whether or not what the House presents to them should result in the removal of a President. It is the job of the House to impeach by bringing forth an article of impeachment. They go through a discovery phase in order to do this. Whatever article of impeachment they put together and present to the Senate is then judged by the Senate. That article of impeachment is limited to the discovery produced to create it. If there is "new" discovery needed, the House is responsible for obtaining it, not the Senate. The Senate can make rules as to how their "judgement" portion of the process is handled but their rules cannot contradict the constitution.

[Rashputin]

"The Senate has the sole right to try the case."

However it's supposed to work in theory, the House delivered a sentence to the Senate, not a case. Not one exculpatory witness was permitted nor were clearly pertinent documents allowed to be entered into evidence.

With what they were delivered, the Senate is actually a group of lawyers looking at either the defense presenting the case for dismissal, retrial, or a plea bargain that falls short of the theoretical single sentence the Senate can deliver which is removal from office.

Looking at what is going on in the Senate and comparing it to any other trial not tossed out as a mistrial as soon a mistrial is requested is a bit silly. The House threw out first presumption of innocence, then the right to confront your accuser, and finished up with denying the defense the right to call witnesses or exculpatory documents.

Given the specific circumstances of this circus, what you're arguing is that the Senate should be held to the very same standards that would have prevented the House from ever delivering the articles of impeachment in the first place if the House had stuck to those standards.

JMHo

[semimojo]

Given the specific circumstances of this circus, what you're arguing is that the Senate should be held to the very same standards that would have prevented the House from ever delivering the articles of impeachment in the first place.

No, what I'm saying is the Constitution gives the Senate the sole right to try the impeachment. Period.

Putting arbitrary restrictions on how they conduct that trial, like barring new evidence, may be fair, reasonable or defensible but it isn't Constitutional.

[Rashputin]

They are trying a case presented to them. That's correct, and like a judge in our legal system, they rule on what has been presented. This isn't the Nepolianic system where the judge asks questions, calls new witnesses, etc., it's the US legal system wherein the judge rules on the case as presented not as the judge can shape it with new witnesses or documents, further investigation, slide shows of what Mitt Romney did on his vacation when they visited a Chocolate milk production line, or anything else.

They judge the case as presented, they do not build both sides of a case. The trial consists of what was presented, not what they create.

[Uncle Sham]

"barring new evidence, may be fair, reasonable or defensible but it isn't Constitutional."

You are missing the point. The Senate can make it's own rules as to how it "judges" the content of that which the House presents in their article of impeachment. The Senate is constitutionally barred from helping the house put forth it's case or assist the House in the discovery phase. "New" evidence or testimony falls under the discovery phase of an impeachment, NOT the judging phase. The Senate judges whatever the House discovers and argues.

[semimojo]

... it's the US legal system wherein the judge rules on the case as presented not as the judge can shape it with new witnesses or documents...

But the Constitution says 'try', not 'judge', and in our system a trial is both presentation of evidence, including new evidence, as well as a verdict.

[semimojo]

The Senate is constitutionally barred from helping the house put forth it's case or assist the House in the discovery phase.

You keep saying that but haven't pointed to the part of the Constitution that backs up your assertion.

[Uncle Sham]

"You keep saying that but haven't pointed to the part of the Constitution that backs up your assertion."

Article One, Section Two, Clause Five...

"5: The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment.

Now, you must understand that there is a process which ends up being boiled down to an article of impeachment. This "process" includes whatever evidence gathering there is that is necessary to formulate the article of impeachment that will be presented to the Senate. "Sole" power to impeach does not give leeway to the Senate in any capacity to partake in evidence gathering as it relates to the process of impeachment. If there is new evidence, it is the responsibility of the House alone to discover it, and if need be, formulate a brand new article of impeachment. The Senate is forbidden from helping them do this.

[semimojo]

If there is new evidence, it is the responsibility of the House alone to discover it, and if need be, formulate a brand new article of impeachment. The Senate is forbidden from helping them do this.

We'll just have to agree to disagree.

In my view you're trying to limit the Senate's ability to try the impeachment, something that the Constitution doesn't do.

I will point out that none of the President's legal team are making the argument that you are, and they're throwing up lots of different theories.

[Rashputin]

Both sides presented arguments directly related to what the House sent over, that's the trial. Now the Senate votes like the judge deciding or the jury voting.

The trial was Schiff standing and telling lies about what he had presented in writing and what he could make up on the spot followed by the Presidents attorneys.

No where in the process do Senators become beat cops, forensic experts, jailers, or attorneys representing either side.

Schiff was the prosecution. He was answered by the defense. Now is the jury supposed to ask for new witnesses, new detectives assigned to investigate all over again from the beginning, and otherwise demand that what the prosecution and defense presented be declared deficient? No, Schiff had his chance to put anyone he wanted to in the witness stand and that was in the House.

[Uncle Sham]

"In my view you're trying to limit the Senate's ability to try the impeachment, something that the Constitution doesn't do"

Once again, you are confusing trials with the function assigned to the Senate in consideration of an article of impeachment. They can ONLY consider the evidence presented to them by the House and the arguments provided to them by the defense. Period. The House says "He's guilty of this, this, this, and this. The Senate then judges their case of this, this, this, and this. There is no constitutional basis to then allow the House to then say, Oh, by the way, he might be guilty of that too. If they want the Senate to Judge "that", then the House needs to gather "that" and present "that" for the Senate to judge.

Think of it this way. The House cannot force the Senate to judge an accusation that is not presented as an article of impeachment. By asking for "new" evidence/testimony, this is actually what they are attempting to do because this "new" evidence/testimony is not part or parcel to the articles of impeachment currently being presented to the Senate.

The manner in which they present this to the Senate is with an article of impeachment. The constitution gives the power to formulate an article of impeachment SOLELY to the House. The Senate is disallowed from developing their evidence and allowing "new" testimony is exactly that.

[MHGinTN]

IF this dying Republic were holding to the rule of law, AND there was sincere will to follow the Constitution, you would be absolutely correct. Alan Dershowitz nailed the unconstitutional process at hand. But weasels like Romney, Collins, Merkowski and the entire Schumer gaggle are not at all interested in the Constitutionality. And sadly, neither is Roberts since he will do as his masters command of him,as proven in the Obamaroidcare fiasco.

[MHGinTN]

The deposition and testimony of ‘witness number 18’ along with the testimonies of the other seventeen witness is the entire limit of witnesses the Senate may consult, interview, or swear in for Senate questioning.

[semimojo]

Both sides presented arguments directly related to what the House sent over, that's the trial. Now the Senate votes like the judge deciding or the jury voting.

There have been 13 Senate impeachment trials. This would be the first without witnesses.

But if you say so...