Democrats didn't 'cave': Why placing the damning Trump-McCarthy phone call into impeachment evidentiary record through stipulation was better than witness testimony


Today has been climactic in the impeachment trial of Donald J. Trump in the Senate. Most everyone - especially news organizations - entered the day with the expectation that after four days of trial, including presentations by both the House Impeachment Managers as well as Trump's legal defense team as well as a Q&A session, the saga would come to an end today once the sides presented their closing arguments and the Senate voted.

That was interrupted first, as Lead House Manager Jamie Raskin asked to call Rep. Jaime Herrera Beutler to testify to her breaking statement from last night. Herrera Beutler, a Republican from Washington who voted to impeach Trump in the House, confirmed last night that House Republican Leader Kevin McCarthy spoke to Trump as the 1/6 insurrection was underway in the Capitol, a call during which Trump expressed support for his followers who was staging an armed coup against the government of the United States.

The Senate voted 55-45 in favor of considering whether to call her and other witnesses in the first shakeup of the day.

After about an hour or so of informal deliberations on the floor, the Senate came back to session, and Trump lawyers announced that on behalf of Donald Trump, they were prepared to stipulate that were Herrera Beutler to appear before the Senate to give testimony, that she would testify, under oath, to the truthfulness of her statement. That stipulation would be placed into the evidentiary record. Lead Manager Raskin accepted that stipulation, and both sides proceeded to closing statements.

This appears to have sparked an immense amount of disappointment among the Always Angry-at-Democrats left as well as the media. They wanted fireworks, depositions, and live testimony in the Senate, and when that didn't happen, they decided that the same Democrats who are the only reason Trump was even impeached and made the Senate consider the matter of witnesses in the first place are the worst people in the world, and that they "caved" to Republicans. Certain reporters even wondered aloud as to why Democrats would be satisfied - after asking for testimony - with placing something into the record, especially when that something was already public.

The problem with instant reaction - and instant disappointment at the lack of instant gratification - is that it often comes without considering what actually happened. That's the case here.

There are several reasons to accept the statement as part of the Senate evidentiary record - even though it was already part of the public record - and reasons why it was better to accept the stipulation than actual, in-person testimony in certain ways.

Herrera Beutler's statement was certainly in the public, but it could not have been considered by the Senate without it being inserted into the evidentiary record. As one of the rulings of the Chair in today's proceeding shows, evidence that is not in the evidentiary record cannot be used in the closing argument of either party. And here's the quirk: Herrera Beutler's statement could not have been made part of evidentiary record without the consent of both parties and the unanimous consent of Senators.

Why not?

According to the rules of the impeach trial proceedings in the Senate - defined by S. Res. 47 - a piece of evidence must be introduced at least 48 hours before a motion can be made to make that piece of evidence part of the evidentiary record. Given that Herrera Beutler's statement was only released last night, with closing arguments scheduled today - before which, by definition, all evidence must be closed - it could not be made part of the evidentiary record through regular order.

Testimony, however, is different. It could be moved before the closing statements, and as soon as it was given, a testimony would become part of the evidentiary record. So House managers moved for testimony instead, and Democrats - and a few Republicans - in the Senate voted to make sure such testimony could be given. That forced Republicans and Trump's defense team to offer the alternative: that the statement be included in place of testimony and the Senate move to closing statements. That is what happened.

To recap, the only way the McCarthy-Trump phone call could have been introduced into evidence was to do so exactly the way it was done today.

But there is another benefit to Trump lawyers stipulating to Herrera Beutler's recalling of the Trump-McCarthy phone call rather than having her testify about it. By stipulating to it rather than having the Congresswoman appear to testify, Trump's lawyers effectively surrendered their client's right to confront his accuser and to cross-examine and impeach (no pun intended) her testimony.

Why is that good?

Because with Trump lawyers giving up the ability to impeach Herrera Beutler's testimony, her statement, as if it were testimony, becomes an uncontradicted part of the evidentiary record. That means that according to the Senate's evidentiary record, it is now legally uncontroverted that Donald Trump knew of the attack on the Capitol in real time, and instead of moving mountains to send help, was engaged in (at the very least) moral support of the mob. Stipulating to testimony is testimony, as if under oath. There is no legal difference, and testimony given under oath is considered true unless it is impeached or contradicted, which the Trump team chose not to do.

Without having depose a single witness, Democratic Impeachment Managers have now answered one of the central questions not just of this trial but of history: what Trump knew (everything), and when he knew it (in real time).

That's better than testimony.

Will it help Trump get convicted in the Senate? Probably not. But it is now record that can be used in criminal proceedings as well as in the court of public opinion. Donald Trump, through his lawyers, has conceded that he knew what he did, and he refused to send help. That will not leave the nation's political discourse anytime soon, to, I believe, the ultimate humiliation of more Republicans at the ballot box.