The Most Serious Obstruction of All: The Vote to Block Witnesses and the Public’s Right to Know

Many criticized the Senate’s vote “to deprive itself of information” by blocking John Bolton and other witnesses from testifying in the impeachment trial of President Donald Trump. What makes the matter worse is that the Senate choked off the American public from hearing that information too, and at the time it mattered most.

Democracy is made up of more than just elections. We’ve designed our system of self-government so that citizens can communicate their views to their representatives before enormous decisions are made final. The impeachment of a president is, most certainly, one of those decisions. Open hearings allow the public to form their own views and for their congressional representatives to take those views into account. In both the Nixon and Clinton impeachments, members of Congress were influenced, in part, by the shape and direction of public opinion. Our system of participatory democracy worked.

That’s what makes the Republican-controlled Senate’s trampling on the public’s right to know and to inform their congressional representatives of their views especially offensive. The Republican leadership’s action came at a point when citizens’ exercise of these rights would have counted most. That was no accident. It wasn’t that these senators personally did not want to hear more before deciding on the final verdict. They apparently didn’t want the public to hear any more either.

The vote came at a time when many millions of Americans had been tuning in to the impeachment proceedings. A majority of the general public watched at least part of the House hearings, according to a You Gov/Economist poll. Although there were disparities in how much Democrats and Republicans followed the proceedings in general, witnesses’ testimony gripped their attention fairly equally. “Republican viewers were nearly as likely as Democratic viewers to have seen each of these witnesses,” according to the poll results. A large majority of Americans were also following news about the Senate trial these past two weeks. The Quinnipiac poll in late January — the same one that found 75 percent of Americans thought that witnesses should be allowed to testify in the Senate trial — also found that a large majority of Americans were paying “a lot” of attention (57 percent) or at least “some” attention (29 percent) to news about impeachment (compared to “little” attention or none at all).

At the time the Senate decided to bar witnesses, millions of Americans had not yet made up their minds on the underlying facts and the ultimate question of guilt. When asked whether the president had engaged in the behavior he was accused of, whether he deserved to be removed, or similar matters, significant percentages were either undecided or shifting in their views. Republicans and Independents also held views that would have probably been affected by the likes of Bolton testifying. Asked if “the impeachment charges against President Trump are more serious, less serious, or about as serious as the charges made against President Clinton in the Monica Lewinsky matter,” 61 percent of Republicans and 25 percent of Independents said the charges against Trump were less serious. And compared to Watergate? A whopping 73 percent of Republicans and 43 percent of Independents said the charges against Trump were less serious than those against Nixon. Reader take note: the charges against Trump are objectively far more serious than against Nixon or Clinton. Vivid and damning video testimony from Bolton, a conservative stalwart with golden national security credentials and a familiar face to Fox News viewers, could have unsettled those underlying beliefs.

But Senate Majority Leader Mitch McConnell’s swift action cut the legs out of the process. By the time the Senate voted to block any witnesses, only a third of Americans said they had “seen, read, or heard” a lot about the reported revelations in Bolton’s book. The larger that number became, the more difficult it would have been to block Bolton from testifying and to acquit.

The Washington Post’s Greg Sargent anticipated McConnell’s strategy long before others. Writing in the first few days of the Senate trial, Sargent explained that one of House Inelligence Committee Chairman Rep. Adam Schiff’s arguments had things backwards. Schiff, and many others too, warned Republicans that they would rue the day they rushed the trial and blocked witnesses because the truth of Trump’s actions would later come out. Sargent explained the incentives ran the other way: Republicans wanted to decide before more revelations came to light that would make their decision to acquit more politically costly.

What makes the Republican leadership’s actions particularly galling is that they wrapped their rush to acquittal in the cloak of “letting American voters decide.” That was a reference to the November 2020 elections, and a firm back-of-the-hand to the participatory democracy our system was designed to respect. Voters weren’t given the opportunity to reach a truly informed decision on whether Trump was guilty of the most serious allegations against him, and what consequences should then follow if he was. That’s exactly the way Trump, McConnell, and vulnerable Senate Republicans like Cory Gardner and Thom Tillis wanted it.

Image: WASHINGTON, DC – JANUARY 21: In this screengrab taken from a Senate Television webcast, Senate Majority Leader Mitch McConnell (R-KY) speaks during impeachment proceedings against U.S. President Donald Trump in the Senate at the U.S. Capitol on January 21, 2020 in Washington, DC. (Photo by Senate Television via Getty Images)

 

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About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). Follow him on Twitter (@rgoodlaw).