Republicans Are Making a Kafkaesque Argument

They are racing to finish Trump’s Senate trial before new evidence of his wrongdoing can emerge.

Friday, as Democratic managers prepared their final day of impeachment arguments in the Senate, reports of a new recording began to emerge. According to the reports, Igor Fruman—a former associate of Rudy Giuliani who is now under federal indictment—recorded a conversation with President Donald Trump in April 2018, in which Trump said that he wanted the then–U.S. ambassador to Ukraine, Marie Yovanovitch, fired.

“Get rid of her!” Trump reportedly says on the tape. “Get her out tomorrow. I don’t care. Get her out tomorrow. Take her out. Okay? Do it.”

What to make of the tape? We already knew that Trump had ordered the firing, though Yovanovitch wasn’t removed for another year. If genuine, the recording shows that Trump was lying about not knowing Lev Parnas, Fruman’s partner and fellow indictee; but then, that was clear all along. It also shows that the president has terrible judgment, since he is heard ordering the firing of an ambassador based on evidently faulty information from a shady character; but then, we had ample evidence of that, too. It shows that the president speaks like a Mafia goon, but that, too, was already well attested.

If nothing else, the tape shows, again, how much evidence we still haven’t seen about the Ukraine affair. And it underscores the elaborate, slippery dance that Senate Republicans are performing. First, they vote against gathering new witnesses and evidence at the start of the impeachment trial. Second, they complain that Democratic managers are offering no new evidence. Third, they say that it is pointless to call witnesses who might provide new evidence, because the White House will simply block them. In Trump’s Washington, Kafka seems quaint.

The Democratic presentation of evidence has certainly been repetitive. Representative Adam Schiff and his team say that their goal is to make the case against the president as clear as possible, but the repetition is also a political ploy, designed to pound the facts into the minds of any members of the general public who are watching and to ensure that as many hear them as possible.

Republican Senator John Kennedy of Louisiana said much of what’s been presented is new. “I’ve learned a lot,” he said. “Everybody has. Senators didn’t know the case. They really didn’t. We didn’t stay glued to the television. We haven’t read the transcripts.”

More of Kennedy’s colleagues, however, have complained about the lack of novelty.

“They’re really not bringing forth new information,” Senator John Barrasso of Wyoming said on CNN on Friday.

That deserves to be flagged for a taunting penalty. Barrasso, along with the rest of the Republican caucus, voted against 11 Democratic amendments to the impeachment rules that would have allowed for witnesses to be called and documents to be subpoenaed. (One Republican, Susan Collins of Maine, broke ranks—on just one of the amendments.)

Republicans know that this opposition to gathering new evidence is unpopular. A new Reuters/Ipsos poll finds that an amazing 72 percent of Americans want witnesses called in the Senate. (You can barely get three-quarters of Americans to agree on mom and apple pie in 2020.) An ABC News/Washington Post poll finds more modest but still impressive two-thirds support.

So the Republicans punted the decision, saying that although they wouldn’t agree to the Democratic requests at the outset of the trial, they’d vote on the idea after both sides presented their cases. Democrats said this was a farce—who’s heard of a trial where witnesses are called only after the prosecution and defense rest?—but they couldn’t do much about it.

With the end of the arguments now in sight—Trump’s lawyers get up to three days to make their case, and then senators will have a chance to ask questions—it appears that Democrats will not win over enough Republicans to the cause of calling witnesses. The GOP has an explanation, CNN reports:

GOP senators are privately and publicly raising concerns that issuing subpoenas—to top officials like acting White House chief of staff Mick Mulvaney and former national security adviser John Bolton and for documents blocked by the White House—will only serve to drag out the proceedings. Plus, many say there’s little appetite for such a time-consuming fight, given that legal battles may ultimately not be successful and could force the courts to rule on hugely consequential constitutional issues about the separation of powers between the branches of government.

The argument is mind-bending. Republicans have said that if Democrats wanted to gather more evidence for impeachment, they should have done so in the House, before passing articles of impeachment—Democrats were simply in too much of a hurry. Yet here, Senate Republicans are leaning toward not gathering too much evidence, because they are in too much of a hurry.

There’s another level of irony. Rather than litigate the White House stonewalling, House Democrats threw up their hands and used it to impeach the president for obstructing Congress. The White House defense team says that if Democrats wanted the documents and witnesses, they should have gone to court. Now Republicans are saying that they can’t gather the information either, because the White House will simply assert executive privilege—a claim that is at the very least arguable and might be knocked down in court. In a reasonable world, the rationale Republicans are offering would oblige them to vote for the second article of impeachment, which alleges obstruction of Congress. Instead, it’s being used as a fig leaf.

The result is distressing. Lev Parnas, an important (though flawed) witness, is presenting what he knows not under oath in the Senate but instead on Rachel Maddow’s MSNBC program. Office of Management and Budget emails are emerging not through impeachment but thanks to FOIA work by the watchdog group American Oversight. The recording of Trump, which the Justice Department possesses through its office in the Southern District of New York, has been published only in the press, without context or much explanation. John Bolton and Mick Mulvaney, who are among the most direct witnesses to the Ukraine affair, haven’t been heard from in any forum since Mulvaney’s disastrous own-goal press conference in October.

The case against Trump remains strong and largely unrebutted. But it’s anyone’s guess how much stronger it might be if all the evidence were available. Democrats have, can, and should be criticized for their haste in the impeachment investigation. I have criticized it myself. But the fact that one house of Congress didn’t do its job doesn’t absolve the other of doing its own. This tactical argument only makes sense if the Senate is approaching impeachment as a game, rather than as a genuine inquiry about a momentous matter.

The seriousness of the allegations against Trump, the extensive evidence to back them up, and popular opinion all demand a real investigation. The Republicans’ response indicates that the Senate majority is still treating this as a game—and they’re eager to cross the finish line before any evidence comes forward that might complicate that approach.