What Does A Free Trial Mean

A Trial Without Witnesses Is No Trial at All

The process requires a critical evaluation of disputed facts or legal issues. That's the whole point.

The U.S. Capitol

Mary Calvert / Reuters

About the author: Buckner F. Melton Jr. is the author of The First Impeachment: The Constitution's Framers and the Case of Senator William Blount.

It's a pathetic commentary on the state of American civics that the biggest issue of the Senate impeachment proceedings wasn't whether President Donald Trump asked Ukrainian President Volodymyr Zelensky for a favor. It wasn't whether the Senate would convict Trump; everyone knew from the outset that barring some Earth-shattering revelation, that wasn't going to happen. It wasn't even whether Trump's alleged activities amounted to impeachable offenses, although that's something worthy of thoughtful discussion. Instead, the big issue was the absurd debate over whether, in a trial, to permit evidence and call witnesses.

A trial, almost by definition, demands a critical evaluation of disputed facts or legal issues. That's the whole point; if everyone agrees about all important matters, there's no dispute to begin with. It's possible to have a trial in which the legal issues are perfectly clear; likewise, given how courts have used the word trial in the past, it's at least technically possible to have a trial without witnesses, such as when the dispute is simply a matter of what the law means. But as the complexity of a case grows, and the importance of the issues escalates, the need for evidence and witnesses becomes ever more imperative.

The House of Representatives carried out months of investigation before impeaching Trump, and it, no doubt, has thousands of pages of documentary evidence and the testimony of dozens of witnesses to rely on. This is the material that the House managers drew upon during their 24 hours of so-called opening arguments, taking that opportunity to sneak in as much of the evidence as they could. Trump's counsel also had 24 hours, to respond to the managers' claims. Senators, acting as both judges and jury, had the opportunity to question both sides. What more do we need?

A lot, as it turns out. The thing that was missing is confrontation, which inevitably means cross-examination.

The main point of cross-examination is to challenge the veracity of the other side's evidence. A competent witness must be able to observe, remember, and recount what happened, and there's always the question of conscious or unconscious bias. The party calling the witness has every reason to put her in the best light possible; it's the opposing party who wants to discredit her. And that's best done through cross-examination, which John Henry Wigmore, the dean of the law of evidence, once famously described as "beyond any doubt the greatest legal engine ever invented for the discovery of truth." In nearly every impeachment proceeding that has made it to the Senate before now, including the basely partisan impeachment of Andrew Johnson, the managers and the defense have called, examined, and cross-examined witnesses.

Things changed with Bill Clinton's impeachment. During his trial the Senate heard from only three people, and then only via select segments of videotaped depositions. But 12 years later, in the impeachment of Judge Thomas G. Porteous Jr., it was back to a typical trial with witnesses, and before dismissing the case against Judge Samuel B. Kent in 2009, the Senate gave the country no reason to think that it wouldn't hear witnesses in that trial. The rule now seems to be that when Congress impeaches a judge, it holds a regular trial, but when it impeaches a president it adopts a Frankenstein process designed for grandstanding that in the end amounts to nothing but sound and fury.

In the Trump impeachment debacle, even the opening and closing arguments, and the senators' questioning process, were terribly flawed. The opening arguments weren't designed to let the managers and the president's counsel test the truth of the other side's assertions. There was a lack of spontaneity; the managers spoke without interruption by the defense for more than 20 hours, raising a host of legal issues and making innumerable factual allegations, all of it likely blurring in the minds of the senators. Any high-school debater knows that the better approach is a series of brief presentations that involve immediate point-by-point rebuttals. Simply put, there was no dialogue.

As for the senators' questions, many of them were softballs—perhaps scripted, prearranged ones—pitched by senators to the side they favored, designed to give that side more grandstanding time. Some senators asked questions critical of the other side's positions, trying to expose weaknesses, and some asked both sides to respond, but most elicited the same old arguments that the country has been hearing for months, with no way to test the truth of the assertions.

The Democrats cried foul. True, the Republicans did so earlier, during the House proceedings, but they had less justification. House impeachment proceedings, a grand-jury analogue, can be more freewheeling and less about due process than a Senate trial.

In the end, this poor excuse for a trial is likely to hurt Republicans and Democrats alike. The Democrats have always had the stronger case. Nobody disputes the wording of Trump's phone call, and common sense can fill in much of the rest. But the Democrats' case had its share of holes in it—or would have, had anyone been brave enough to poke them. Republicans' failure to allow evidence and full-on cross-examination may have shielded Trump from embarrassing and perhaps damning revelations, but it also meant that a great many Democratic claims and assertions—many of them hyperbolic and some of them just plain wrong—went untested and will be accepted as fact for years.

This impeachment ultimately wasn't Congress, or even the House Democrats, versus the president. It was House versus Senate, Democrats versus Republicans—a political brawl without regard for truth or the Constitution. That's the rosiest description of what's just happened. The other scenario is much scarier: At least one side, and perhaps both, believed its cause to be truly just and right, to the utter disbelief and even incomprehension of the other. If that's the case, then there's little left of the shared reality that is the basis for any kind of stable society.