A member of Donald Trump’s impeachment defense team argued at his Senate trial on Wednesday that no fact witnesses should be called by the House impeachment managers.
His reasoning: Witnesses aren’t called to testify for the first time during trials.
Pat Philbin, a deputy White House counsel, was responding to a question about the administration’s opposition to witnesses when he made the remarks.
“The House managers try to present it as if it’s just a simple question: ‘How can you have a trial without witnesses?'” he said. “In real litigation, no one goes to trial without doing discovery. No one goes to trial without having heard from the witnesses first. You don’t show up at trial and then start trying to call witnesses for the first time.”
Doing so, Philbin argued, would be “very grave” for the Senate as an institution.
In reality, prosecutors typically do try to interview witnesses before trials for strategic reasons, but there is no requirement that they do so. “Surprise witnesses” have long been a fact of life in American jurisprudence. Sometimes attorneys even call witnesses who do not wish to testify or are “hostile” to the side that calls them.
Moreover, under Philbin’s logic, House managers would be free to call any fact witness that the House impeachment inquiry previously spoke with. Given that Rep. Eliot Engel (D-NY), House Foreign Affairs chair, revealed on Wednesday that he spoke John Bolton in September about the Ukraine scandal, he would seemingly be included.
Walter Shaub, the former director of the Office of Government Ethics under President Obama, also explained Wednesday that calling new witnesses in a Senate trial would hardly break with precedent.
“Trump lawyer Pat Philbin just warned the Senate that calling witnesses who didn’t testify before the House would set a dangerous precedent. But the problem with his argument is that EVERY past impeachment trial the Senate completed included new witnesses,” he tweeted.
The Trump administration and its Senate allies have been pushing to quickly end the trial without hearing from any fact witnesses at all.
Last week, Senate Republicans voted repeatedly against Democratic proposals to subpoena relevant records and witnesses for the trial. At the time, Republicans said they would decide whether to hear from witnesses after the trial’s first phase, but Senate Majority Leader Mitch McConnell has spent the past several days working to whip his caucus to simply end the trial without hearing witness testimony.
After a caucus meeting on Wednesday, Sen. Mike Rounds (R-SD) told reporters that they planned to skip witnesses and end the trial “by Friday, hopefully.”
