Editorial Board Memorandum: Fate of a Fair Impeachment Trial Rests with a Handful of Senators

To: Editorial Board Editors & Writers

From: Karen Hobert Flynn, Common Cause President

Paul S. Ryan, Common Cause VP Litigation and Policy

Aaron Scherb, Common Cause Director of Legislative Affairs

Re: Background Memorandum: Fate of a Fair Impeachment Trial Rests with a Handful of Senators

Americans expect and deserve a fair impeachment trial of President Trump. The charges that led to the President's impeachment are serious and the Senate owes the American people a fair trial. The House found that the President withheld military aid to Ukraine, an imperiled U.S. ally, in order to extort personal political favors to aid Trump's reelection efforts. But to date, Senate Majority Leader Mitch McConnell (R-KY) has made no secret of the fact that he is working hand-in-glove with the White House counsel's office to coordinate strategy during the impeachment trial. This is the equivalent of a jury foreman coordinating with a defense attorney on how best to acquit a defendant. A number of Senators have expressed publicly and privately their concerns with the Majority Leader's work with the President's defense team. One stated outright that she was "disturbed" by McConnell's comments and actions to coordinate with the White House.

But on January 21^st and into the morning of the 22^nd, every Republican in the United States Senate voted 11 times to block first-hand witnesses from testifying and to prevent relevant evidence from being included. There have been numerous reports that over the course of the trial a number of GOP Senators are troubled enough by the rush to judgement that they may break ranks and vote to call witnesses and take other steps to allow a fair trial. That dissent within the GOP echoes overwhelming support in this nation for the Senate trial to include witness testimony. According to a recent Monmouth poll, more than 75% of Americans say that Trump officials, as well as the president himself, should be invited to testify at the Senate trial. A similar CNN poll found that 69% of Americans, including 48% of Republicans, say that the impeachment trial should include testimony from new witnesses who did not testify in the House trial.

There is still time for a fair impeachment trial. We strongly encourage you to write or editorialize to urge your Senators to put their country before their party and cast votes to ensure a fair impeachment trial. Americans expect and are entitled to the facts. This nation deserves far better than a show trial that attempts to whitewash President Trump's impeachment for his withholding of vital military aid to Ukraine in an attempt coerce the U.S ally into launching an unnecessary investigation of his political rival Joe Biden and his son Hunter. A Government Accountability Office (GAO) investigation found the Trump Administration violated the law by withholding aid to Ukraine.

Your commentary is particularly important as the full Senate is expected vote on whether to call witnesses and allow evidence in the next week.

Every United States Senator swears an oath to "support and defend the Constitution of the United States against all enemies, foreign and domestic; ... and that I will well and faithfully discharge the duties of the office on which I am about to enter[.]" In addition, every senator sitting as a juror in an impeachment trial swears to "do impartial justice according to the Constitution and laws[.]"

Each and every senator, regardless of party affiliation, must fulfill their oaths to "support and defend the Constitution" and "do impartial justice" by meeting the following basic requirements for a fair Senate trial - including all the available evidence and firsthand witnesses to the events in question relating to the withholding of aid to Ukraine.

Every effort is being made by to predetermine the outcome of the trial and limit what Americans can see and hear of the proceedings. President Trump has even sought to influence the jury by ramping up fundraising for Republican Senators ahead of he trial. Those Senators who benefitted from the President's fundraising should either return those funds or they should recuse themselves from serving as jurors in the impeachment trial.

The Majority Leader has even taken extreme and unprecedented steps to restrict media coverage of the impeachment trial and insisted that it drag on into the night when many Americans are already asleep. Reporters are even kept in pens and denied their normal access allowing Senators to avoid questions. Cameras are prohibited. Even the ever-present C-SPAN cameras have been shut down so that Senator McConnell controls all video - providing only a single angle and no crowd shots to show sleeping Senators or empty seats.

In the weeks since the U.S. House of Representatives formally impeached President Trump, there has been a series of new revelations that confirm what multiple witnesses testified during the House's impeachment investigation. Much of this new information has added significantly to a compelling case laid out by witnesses in the House impeachment proceedings showing a consistent pattern of abuse of power and obstruction of investigations by President Trump. The new information points toward President Trump's directing the White House efforts to withhold military aid to force an imperiled U.S. ally to do the President political "favors" to aid his own reelection efforts.

The American people deserve, and the Senate must demand, testimony from the witnesses from President Trump's inner-circle who witnessed the President's repeated efforts to coerce Ukraine into doing political dirty work in exchange for military aid already appropriated by Congress. The President stonewalled and obstructed the House investigation, so it is now the Senate's obligation to the rule of law to ensure it hears the testimony of those who witnessed the acts in question.

Former National Security Advisor John Bolton has stated that he will testify before the impeachment trial if subpoenaed. The Senate should also hear from Acting White House Chief of Staff Mick Mulvaney, who admitted repeatedly on live television, that the White House withheld military aid to the Ukraine as a quid pro quo until the country launched an unwarranted investigation into Joe Biden and his son. The Senate should also hear from Secretary of State Mike Pompeo, Attorney General William Barr, Rudy Giuliani business associate Lev Parnas, and a number of other officials with critical first-hand information concerning the President's Ukraine bribery scheme.

The constitutional questions presently being weighed by the Senate extend far beyond President Trump and the current circumstances. Allowing any White House to block witness testimony, evidence, and transparency in a presidential impeachment trial sets a dangerous precedent for any future Congress attempting to hold a President accountable to the Constitution of the United States. Today it is a Republican ignoring the Constitution, but if these abuses of presidential power are permitted to stand, then the day will inevitably come when a Democratic president follows the lead set by President Trump and refuses to cooperate with the United States Congress, a coequal branch of our system of national government.

It falls to the Senate to get to the bottom of this evolving scandal, to get the facts and to render judgement accordingly. Members of both parties must put their duty to their country before their duty to their party.

We urge you to editorialize to encourage your United States Senators to vote to call the necessary witnesses to fully and fairly investigate the abuse of the powers of the presidency by Donald Trump for personal political gain. It is time for every member of the United States Senate to take a deep breath and put their duty to their nation before their fealty to their political party. Their constituents and the nation are watching closely.