If you peruse the mainstream media, there are all sorts of reasons being bruited justifying the Democrat demand to call witnesses at President Trump’s impeachment trial.  Generally speaking, they sound quite reasonable; after all, trials almost always have witnesses.  But it is not only that the constitutional process of impeachment and Senate trial is not judicial (as opposed to using judicial process as a model) it’s that an impeachment such as we have today was plainly not envisioned by the Constitution’s drafters. 

To start, let’s review the pro-witness case, which has two basic elements. 

First, impeachment and trial are evidentiary hearings.  If you look to the judicial model of indictment and trial, upon which Congressional impeachment proceedings appear to be based, then it is reasonable to expect witnesses to testify at both.  Just because a prosecutor calls witnesses at a grand jury proceeding, doesn’t mean witnesses don’t have to be called at trial; barring a guilty plea they most certainly do.   Just because the House impeachment proceeding (analogous to a grand jury) has witnesses and evidence, doesn’t mean they are obviated in a Senate trial.  The only way to avoid witnesses would be resignation, the equivalent of  guilty plea by the President, or evidentiary stipulations agreed to between the parties, i.e., the House and the President.  Obviously, in the present case neither will happen, so calling witnesses is reasonable and necessary. 

Second, precedent says witnesses should be called.  Dozens of witnesses were called by both sides in Andrew Johnson’s impeachment.  Republican House managers deposed three witnesses during the Clinton proceeding, submitted those into evidence, and played portions of Monica Lewinsky’s videotaped testimony in the Senate chamber.  Given this precedent, House managers should be able to call witnesses against Trump, and he to respond in defense.

These are two pretty compelling arguments, even if Nancy Pelosi has made a hash of it.

However, none of this applies to the present situation, because the impeachment/trial model does not mirror the judiciary in one important sense: the House and the Senate both have administrative roles in the trial, and the Senate has plenary authority over these.  Where the goals of the House and Senate are in plain opposition, you have unintended conflict and gridlock. 

The correct analogy is not to a conflict over court procedure between prosecutors and defense counsel, to be decided by an unbiased judge, but rather a conflict within a prosecutor’s office, where the “Senate” is the States Attorney, and the “House” is his hard-charging deputy.  Regardless of how good a case the deputy may believe she (Pelosi) has, the boss (McConnell) has the final say.  Of course, Pelosi basically understands this, which is why she hesitated to bring the case to her “boss.”  Once it’s on his desk it’s up to him to decide how to prosecute the case, or whether to do it at all. 

It doesn’t matter that according to the Constitution, McConnell is also supposed to be a juror.  He’s designated two hats.  He has a ministerial role first setting up the prosecution, and as juror second, if he decides to go forward.  It’s odd, but that’s the way the Constitution has it.

Constitutionally, McConnell could just dispense with further proceedings through a Senate vote that dismisses the case, which supposedly is what the President wants.  That very clearly is a discretionary prosecutorial act, which demonstrates that the Senate acts in this instance in twin roles, ministerial as part of the prosecution (where indeed it has final say) and as, if necessary, the jury.

What’s also clear is that the mess we have today was not the intent of the Constitution’s drafters.  The current two party system did not exist when the Constitution was written, even though there were nominally two parties at the time (the Federalists and the Democrat-Republicans.)  But George Washington explicitly was not a member of either party, and both the Federalist Papers and Washington’s Farewell Address warn against the kind of partisan politics that could lead to an impeachment like this one. 

Previous impeachments went to the trial with witnesses for a simple reason: the impeaching party in the House was also the party controlling the trial in the Senate.  Without one party dominating both Houses, or strong bipartisan support for an impeachment, conflict and gridlock is inevitable.  While in some cases it’s clear the Founders invited conflict between the Houses (and Branches) as a hedge against precipitous action, this situation is not one of them.  The only way to avoid such a mess is for a partisan but responsible House leadership to step away from the urge to impeach a President of the other party for anything but the gravest offense, which presumably would compel a partisan Senate of the President’s party to go along.

It appeared Nancy Pelosi understood this, and she even expressed reasonable caution regarding her caucus’s incessant calls to impeach Trump since even before his swearing in.  But she lost it, either caving to pressure within her caucus, or because she thought she was such a political maestro that she could manipulate a necessarily fraught situation, or both.  She’s failed spectacularly, only avoiding humiliation because the media insists on calling the House’s sloppy and incomprehensible work masterful.  It’s like when “art experts” praise the messy paintings of elephants, because they resemble the slop of less talented but celebrated humans that those same experts acclaimed.  History will not be so kind.