Pause a moment over the senator’s logic. She seems to be saying that because the House’s product was hasty and deficient and partisan, the Senate should punish the body by proceeding in a fashion that is hastier, more deficient, and every bit as partisan. She will vote to prevent the Senate from hearing evidence, to blind herself to information relevant to her own obligation to decide the president’s case, she says, because “I don’t believe the continuation of this process will change anything.” It won’t change anything, that is, except whether she and her colleagues have access to more, rather than less, probative evidence on the question before them. If the House decision was hasty and partisan and left a record that is incomplete, that would seem to argue for the Senate proceeding in a fashion that was careful and deliberative, and it would seem to argue for senators to behave in a nonpartisan fashion.
Sen. Rob Portman was a trifle more coherent in his https://www.portman.senate.gov/newsroom/press-releases/portman-statement-witnesses-senate-impeachment-trial (explanation) of this point. He offered that “it sets a dangerous precedent—all but guaranteeing a proliferation of highly partisan, poorly investigated impeachments in the future—if we allow the House of Representatives to force the Senate to compel witness testimony that they never secured for themselves.”
Portman did not, unfortunately, reflect on what precedent it sets for the Senate to impose a no-new-evidence rule on the House, disabling the House from presenting at trial any evidence it did not acquire itself before impeachment. This will of course incentivize presidents (and judges) to withhold material as long as possible during impeachment investigations, thus either delaying impeachment or creating an argument for the evidence’s inadmissibility if impeachment proceeds without it.
Since the Senate did not hear testimony from any of the witnesses who
did testify before the House investigation, the rule Portman endorses is really a no-witnesses-at-all rule. If a witness has testified before the House, after all, her testimony is not needed in the Senate. If not, Portman would preclude it because the House did not secure it earlier. Portman’s rule would turn the Senate into an appellate body. The Constitution, by contrast, gives the Senate the role of
trying impeachments.
The icing on this ridiculous cake is the notion that hearing witnesses would take too long. Sen. Portman frets that “processing additional witnesses will take weeks if not months, and it’s time for the House and Senate to get back to addressing the issues the American people are most concerned about—lowering prescription drug costs, rebuilding our roads and bridges, and strengthening our economy.” Leave aside for a moment that the Senate hasn’t been doing a lot of lowering drug prices or dealing with infrastructure of late. Portman’s argument might have been a good one to make at the Constitutional Convention against giving the impeachment trial function to the Senate in the first instance. It may be a good argument for, as
the Senate trial rules contemplate, assigning the evidence-taking function to a committee (see Rule XI). It is a singularly lousy argument for interpreting the Senate’s clear constitutional responsibility to try impeachments as including the option of
not trying impeachments
.
When smart people, capable people, advance arguments so resoundingly and pervasively terrible—when they advance a proposal for a trial that offends the very idea of a trial—you have to ask what role the argument is playing other than seeking to persuade people. That these arguments persuade nobody is clear from the poll data, in which support for hearing from witnesses reached https://www.washingtonpost.com/politics/2020/01/29/yes-75-percent-americans-support-calling-witnesses-maybe-not-same-witnesses/ (as high as 75 percent) and did not decline over the period in which the president’s lawyers made their case.
But persuasion, I think, is not the point. The point, rather, is tribal affiliation. This is a credo of sorts, a public affirmation of the party line designed to ensure that one is not Romneyed—that the leader’s tyrannical rage is directed elsewhere, that his self-appointed enforcers do not deprive one of the benefits of being in the herd.
Yes, inside the herd, life is abusive. But outside, it is very very cold and one is very exposed.