Impeachment: Jay Sekulow bumbles the John Bolton witness question

Let us pause for a moment of genuine sympathy for Donald Trump and the crew of legal loose cannons with which he has surrounded himself. This impeachment mess seems to have started with Rudy Giuliani pursuing half-baked conspiracy theories. And it is finishing with Jay Sekulow accidentally blowing up President Trump’s entire impeachment trial strategy in the final minutes of three days of opening statements. Impeachment trials require Daniel Webster and Trump brought My Cousin Vinnie.

What did Sekulow do? Over the last few days, serious allegations about the president’s conduct taken from John Bolton’s new book have rocked Republican senators seeking to shut down the impeachment trial as quickly as possible. Responding to the increasing pressure to have Bolton testify, Republican senators have pitched a variety of ideas from the absurd to the desperate. One senator proposed that the White House make Bolton’s book available so that senators could read it. Lindsey Graham begged Bolton, “Hold a news conference and we’ll consider what you’ve got to say if you think it’s that important.”

The rush to dismiss Bolton

In an effort to put out this growing firestorm, Sekulow, the last speaker making President Trump’s opening statement in the Senate trial, argued that the Senate should ignore Bolton’s allegations, “I don’t know what you call that. I call it inadmissible but that’s what it is.”

Members of President Donald Trump's legal defense team arrive at the U.S. Capitol on Jan. 25, 2020. (Photo: Michael Reynolds/epa-EFE)

Sekulow is, of course, absolutely correct. In a court, Bolton’s out-of-court statements wouldn’t be admissible. But then again, neither would President Trump’s denials of the allegations in the impeachment charges. And, while the statements in the manuscript itself wouldn’t be admissible, those statements, repeated by the author under oath and subjected to cross examination, most certainly would be.

In just two ad libbed sentences, Jay Sekulow managed to blow up the very basis of President Trump’s no-witness strategy, that senators have heard enough and that no further evidence is necessary. Worse, he made the case that Trump himself has to be brought in as a witness because none of the various statements he has made to the press or on Twitter are admissible either. (By contrast, all the testimony taken under oath by the House is.)

USA TODAY’s Editorial Board: Impeach President Trump

Following Sekulow’s logic, unless the defense produces its own evidence, the Senate is duty-bound to find all the charges against Trump to be true because there is no admissible evidence to rebut them.

On Friday, the Senate will vote on whether to call witnesses. As of Tuesday evening, McConnell admitted he did not have the votes necessary to end the trial without hearing further evidence. Between the new evidence offered by Lev Parnas — which includes a tape of President Trump apparently doing things he has repeatedly claimed he never did — and John Bolton’s allegations, refusing to hear any additional evidence would amount to Senate Republicans shoving their fingers in their ears and shouting “La La La La! Not listening!” Not a good look. Not for them. Not for President Trump.

Don’t act like impeachment is just an annoyance to you

Process is important. Whether Trump is convicted by the Senate or not, the way this trial is conducted will have repercussions both in the short term and the long term. Making it obvious that the fix is in and that the oath taken by each senator “to do impartial justice” means nothing will only further damage faith in our institutions and make what is already going to be a banner year for election-related anger and bad feelings that much worse. In the long term, treating impeachment as a political inconvenience to be dispensed with as quickly as possible will fundamentally weaken our system of checks and balances. Congress should be encouraged to rise above party during an impeachment proceeding, not sink to the lowest common denominator.

Fortunately for Senate Republicans, there is safety in numbers. Separating yourself from the herd may make you personally vulnerable to a nasty Trump tweet. But if all 53 senate Republicans vote to hear evidence, there’s not much the president can do. Even Trump can’t credibly threaten to primary the entire Republican caucus.

Done with good reason: Even if the Senate does not remove Donald Trump, this impeachment is far from a mistake

Let John Bolton testify. The damage to Trump’s reputation, such as it is, has already been done. Taking Bolton’s testimony seriously and addressing it soberly, however, may alleviate some of the damage that has been inflicted on the body politic. There is an immense political fault line in America that is far too close to rupturing. If, as everyone believes, Trump is not going to be removed from office by the Senate, it’s critical to America’s political health that the losing side feels that this trial has been conducted fairly. Let John Bolton testify. The Senate should be less worried about whether the impeachment trial gets concluded before the State of the Union address and more worried about the state of the union.

Chris Truax, an appellate lawyer in San Diego, is an adviser to Republicans for the Rule of Law and a member of USA TODAY’s Board of Contributors.

You can read diverse opinions from our Board of Contributors and other writers on the Opinion front page, on Twitter @usatodayopinion and in our daily Opinion newsletter. To respond to a column, submit a comment to [email protected].

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