Jerrold Nadler, Carolyn Maloney, Adam Schiff and Eliot Engel.

Chip Somodevilla/Getty Images

Law and Order | Opinion

Democrats, You’re About to Go to Trial. This Is How You Win.

Any hope of getting Republicans to break ranks depends on persuading the public first.

Continue to article content

Renato Mariotti is the Legal Affairs Columnist for POLITICO Magazine. He is a former federal prosecutor and host of the “On Topic” podcast.

The House impeachment inquiry into President Trump has already uncovered damning evidence that proves the “quid pro quo” the president continues to deny. But none of that evidence will matter if House Democrats don’t present the evidence in a way that moves the needle of public opinion.

Democrats can’t afford to wait for the inevitable Senate trial to make their case. They will lose control of the process in the Senate, and they face an uphill battle given that they need the votes of 20 Republican Senators to remove Trump from office. The only hope of creating a Republican stampede away from Trump is by persuading their constituents his removal is warranted.

Story Continued Below

Fortunately for the Democrats, the resolution recently passed by the House gives Democrats a tool to create “must see” moments by granting House Intelligence Committee Chair Adam Schiff the ability to permit a staff attorney to conduct 45 minutes of uninterrupted questioning. The examination of a witness takes time—far longer than the five minutes members usually get during hearings—and an experienced questioner will know the right questions to ask to yield clear and damning answers.

These are technically public hearings—for the purpose of gathering evidence to help draft the articles of the impeachment the House will vote on. But in truth, because so much evidence has already been gathered in the closed-door depositions, these hearings are actually much more like a trial. And Democrats need to treat them that way.

That means thinking of the public as the jury. To persuade a jury that is scattered across the country, watching from a distance and distracted by daily life and the president’s talent for creating diversions, House Democrats will need to use the tools they have to tell a compelling story. My years of experience as a trial lawyer suggest they should keep in mind the following:

1. Stay focused.


The side with the simpler story usually wins at trial. One advantage Democrats have is that the story they’re telling is remarkably straightforward—Trump withheld military aid to pressure another nation to dig up dirt on a likely political opponent and then his staff tried to cover it up.

Democrats should avoid complicating the issue by presenting evidence of other Trump misconduct—anything from the Mueller Report on Russian interference in the 2016 election, for example, or the alleged emoluments violations. The exception might be obstruction charges related directly to the Ukraine matter. But Democrats need to resist the urge to litigate all the scandals generated by the Trump presidency (payoffs to porn stars with whom Trump had affairs, to name just one). Voters have already become inured to that unflattering information and they’ll tune it out, making it that much harder for any new message to break through.

2. Start and end strong.


Any good trial lawyer knows that jurors tend to pay attention to the first and last witnesses more than the witnesses sandwiched in between. Because the first witness needs to tell the story and put the rest of the testimony in context, Democrats should start with a strong witness like Ukraine envoy Bill Taylor or Lt. Col. Alexander Vindman, both of whom testified to the “quid pro quo” that Trump denies.

Vindman, because he was on the call and raised his concerns immediately afterward, would be a logical choice to go first. Taylor, with his bipartisan credibility, can follow to complete the story about how delivery of aid was conditioned on the opening of investigations into the 2016 election and the Biden family. Democrats need to save a strong witness—preferably a witness who can help illustrate why Trump’s misconduct matters—for the end of their case. The best candidate for this key slot would be a witness who will not buckle under aggressive cross examination.

Democrats will also need to make sure to carefully sequence witnesses so the public is able to see inconsistencies in the testimony of hostile witnesses like U.S. Ambassador to the European Union Gordon Sondland, a hotel tycoon and major Trump donor. While Sondland’s previous testimony appeared consistent, his account came under sharper scrutiny after hearing from witnesses like Taylor and Vindman. Problematic witnesses like Sondland should be buried in the middle of the witness order, with witnesses testifying beforehand that put Sondland’s testimony in context and make it harder for him to minimize his role.

3. Work with evidence you do have.


Stonewalling by the Trump administration has cost Democrats important testimony and evidence. This week four Trump officials, including the White House attorney who decided to hide the transcript of the July 25 call with Ukrainian President Volodymyr Zelensky in a classified vault, refused to appear despite being subpoenaed. The House is already grappling with a fifth witness in a court battle over whether he must honor a subpoena. There can be little question that key documents and communications are also being withheld due to the administration’s lawless position that the impeachment inquiry is “illegitimate.”

But Democrats need to focus on the evidence they have, not the evidence they’re missing. And they have more than enough to prove the quid pro quo. Besides, court battles won’t be resolved quickly enough to matter. Less is more. Voters (like jurors) have a limited attention span anyway, so House questioners should ask questions to establish that there is evidence that is being withheld and then move on to the next question.

4. Develop your themes.


Successful trial lawyers develop themes that run through their entire case and give it unity. Developing themes is even more important in this context because voters, unlike jurors, aren’t forced to pay attention to the proceedings. Trump’s success in staving off impeachment after the Mueller investigation was due in part to the simple themes he was able to lodge in the public consciousness—like “No Collusion, No Obstruction”.

Democrats have some strong, simple themes of their own. They are focusing on proving an abuse of power through a quid pro quo. They should develop lines of questioning that highlight their themes and ask those questions to as many witnesses as possible. The repetition will bolster their case.

5. Stick to the facts.


Trump and his allies attack impeachment as a partisan exercise—the latest effort by Democrats to undo the last presidential election. Despite unfair criticism, Democrats should focus on the facts—which are on their side—and handle this process with the solemnity it merits. If the process looks like a partisan fight, it will be easier for Trump to paint it as “Washington as usual.”

In criminal cases, courts restrain prosecutors from going too far beyond the facts—making improper arguments can result in a finding of prosecutorial misconduct that could undo a conviction. Democrats should restrain themselves here and resist the urge to manufacture TV sound bites. The unfair criticism of Schiff’s dramatization of the Trump-Zelensky call—which, in context, was not misleading—underscores the need to play it straight and let the facts do the talking.

6. Explain why it matters.


Trump has provided Democrats with a great gift by continuing to deny the quid pro quo even though there is very substantial evidence that there was one. Trump’s position is factually indefensible, which is why many prominent Republicans have begun to push a different line—that there was an improper quid pro quo, but Trump does not deserve to be impeached for it.

In a trial, jurors only decide guilt—the judge decides the penalty much later. But in this context, the Senate decides whether the punishment of removal from office is warranted. Democrats need to make the case for removal by explaining why Trump’s misconduct is serious. They should emphasize that Trump was using taxpayer money to advance his own political interests, as well as the impact withholding aid to Ukraine would have on Ukraine, our allies, and our national interest.

For now, Trump is sticking to his “no quid pro quo” line and appears unable to admit fault. But you can expect Republicans to shift course with or without him, and if Democrats do not strongly make the case that removal is the right penalty, Republicans will feel comfortable voting not to remove Trump from office.

Jump to sidebar section