Democrats, aided by a tiny group of Republicans, have voted to have witnesses at the “Impeachment Trial.” This can open a significant opportunity for Donald Trump if they call him to testify. Certainly he can refuse, based on the Fifth Amendment privilege, but in this isn’t a trial in a standard Court, and Democrats will use it against him. Their allies in the MSM will scream that this is an admission of guilt. Any opportunity that he has to run in 2024 will be hounded by this accusation. But there is a silver lining.
The Trump defense was presented even though his attorneys argued that the process was unconstitutional. Had he not defended himself, the Senate might have “convicted” him with the same public relations result as taking the Fifth. It would be a lose-lose proposition. But now, if he is subpoenaed, a new opportunity arises.
No witness has any responsibility to testify in an unlawful trial. But to date, no actionable determination has been made that the exercise is unlawful. Excellent arguments have been made, based on Article II, Section 4 that the purpose of Impeachment is to remove the President from office. This has been extended by Article I, Section 3’s clear statement that the Senate has the threshold power to remove a President from office. All else is consequent to that. But Donald Trump is not the President. Therefore, this threshold power of the Senate does not apply.
The Chief Justice has elected to not preside over the Senate. While the Supreme Court has issued a “no comment” on whether Justice Roberts was asked to preside, his absence suggests that he thinks this proceeding has no legal jurisdiction. And this is the prize. If subpoenaed, the Senate will directly create a conflict between them and Mr. Trump that is properly settled at the Supreme Court. Does the Constitution allow the Senate to try an impeachment of a private citizen, and for that citizen to testify? Or does it require that the target of the process occupy the office at the time of trial?
If SCOTUS rules that the process is unconstitutional, Democrats in the Senate will have a huge problem. They will invigorate any future political activities by Donald Trump by creating vivid enemies for his base. The Republican senators who voted to proceed (Romney, Collins, Murkowski, Sasse, and Toomey) would also have major targets painted on their backs.
If SCOTUS rules in favor of continuing, it will almost certainly do it on the narrow grounds that the House acted while Trump was in office, and nothing will change. Anything else will open the floodgates for the willy-nilly impeachment of private civilians, a totally insane proposition.
In either case, Donald Trump has nothing to lose by appealing to SCOTUS. If he wins, we won’t need no stinking witnesses, because we the Democrat hopes to injure him will be terminated.