纳德·特朗普总统和参议院多数党领袖米奇·麦康奈尔(Mitch McConnell)正拼命试图阻止参议院的真正审判，不是因为他们害怕前国家安全顾问约翰·博尔顿等证人的证词，而是因为他们担心众议院管理人员将压力加大，要求唐纳德·特朗普作为他们的主要证人。真正的审判意味着提供直接证词并接受盘问的现场证人。
毫无疑问，对所谓的乌克兰大摇大摆的事实了解最多的证人是唐纳德·特朗普。事实上，他声称自己7月25日与乌克兰总统沃洛迪米尔·泽林斯基的通话是“完美的”，他没有做错任何事。特朗普面临的问题是，他的谎言和混淆视听经不起对事实的激烈反诘问。
这些不方便的事实包括利用他的私人律师鲁迪·朱利安尼发起一场协调一致的运动，迫使乌克兰公开宣布对拜登夫妇的调查；特朗普记录在案的对乌克兰腐败缺乏兴趣，而不是为了自己的政治利益挑出拜登一家；特朗普拒绝向乌克兰拨付资金的指示；以及他公开承认寻求外国政府的选举援助。
在一次审判中，受到盘问的特朗普无法像众议院的共和党人那样逃避事实。在真正的审判中，按照美国传统判例中的标准做法，众议院将能够从行政部门传唤相关文件，这些文件可能被用来摧毁特朗普另一种基于事实的完美主张。
弹劾审判不是禁止控方传唤被告出庭作证的刑事审判。根据《宪法》第五修正案，不能强迫刑事被告作不利于自己的证词，控方不能对未能作证发表评论，陪审团也不能认为被告未能作证。然而，在民事案件中，原告有权传唤被告作证。民事诉讼中的被告当然有权在回答个人问题时主张他的第五修正案特权，但拒绝作证可以适当地让陪审团得出结论，被告有所隐瞒，因此犯有所指控的行为。
弹劾审判没有什么不同。这是一个民事案件，因为处罚不是监禁，而是免职。事实上，《宪法》明确规定，一旦被免职，被弹劾的官员将“受到起诉”在这里，特朗普可以根据他的第五修正案特权拒绝作证回答具体问题，但他拒绝作证将支持他有罪的结论。特朗普对行政特权的任何主张也不太可能获胜，因为他已经放弃了任何此类特权，原因是他发布了7月25日电话会议的纪要以及他关于自己在乌克兰的角色的公开声明。
参议院审判中关于这些法律问题的最初决策者将是最高法院首席法官约翰·罗伯茨，宪法指定他为“主持”总统弹劾审判的公职人员。虽然首席大法官罗伯茨的决定可以被51名参议员否决，但米奇·麦康奈尔召集这51票可能并不容易。阿拉斯加州参议员莉萨·穆尔科斯基已经明确表示，她赞成认真考虑事实。如果多两位参议员采取宪法规定的相同立场，我们将会有一个有现场证人的公平审判。
此外，在弹劾审判中，共和党人没有机会通过对罗伯茨法官或51名参议员的最终决定提起诉讼来推迟审判过程。审判通常不会因当事人对证据和程序问题提出上诉而延期。在大陪审团和众议院的调查中，这种做法是不同的，在这种情况下，特权问题可以被详尽地诉讼到最高法院。一旦罗伯茨法官对证人及其证词的范围做出最终决定，或被51名参议员驳回或决定，参议院就没有上诉的途径。美国宪法规定，“参议院拥有审理众议院提出的所有弹劾案的唯一权力”。
本质上，米奇·麦康奈尔可能没有能力像他所暗示的那样，控制弹劾审判的形式来为唐纳德·特朗普开脱罪责。审判的最终规则可能最终取决于罗伯茨大法官称之为“球与击”，正如他在确认听证会上对自己作为最高法院大法官的角色的著名描述，他的法律和道德权威将不得不被51名参议员推翻。归根结底，唐纳德·特朗普不放心的是参议院可能会选择行使宪法赋予的职责。
尼克·阿克曼是多尔西惠特尼律师事务所的合伙人，前水门事件助理检察官和纽约南区前美国助理检察官。
DONALD TRUMP MUST BE CROSS-EXAMINED AT HIS IMPEACHMENT TRIAL WHERE HE CAN'T RUN FROM FACTS | OPINION
President Donald Trump and Senate Majority Leader Mitch McConnell are desperately trying to block a real trial in the Senate, not because they are fearful of the testimony of witnesses such as former National Security Adviser John Bolton, but because they fear that pressure will build for the House managers to call Donald Trump as their star witness. A real trial means live witnesses who provide direct testimony and are cross-examined.
There is no dispute that the witness with the most material knowledge of the facts surrounding the alleged shakedown of Ukraine is Donald J. Trump. Indeed, he claims that his July 25th call with Ukraine President Volodymyr Zelenskiy was "perfect" and that he did nothing wrong. The problem for Trump is that his lies and obfuscation cannot withstand a vigorous cross-examination of the facts.
These inconvenient facts include use of his personal lawyer, Rudy Giuliani, to wage a concerted campaign to pressure Ukraine into publicly announcing investigations into the Bidens; Trump's documented lack of interest in corruption in Ukraine as opposed to singling out the Bidens for his own political gain; Trump's direction to withhold the appropriated funds from Ukraine; and his public admissions about seeking election assistance from foreign governments.
In a trial, a cross-examined Trump could not run away from the facts as the Republicans did in the House. In a real trial the House would, as is standard practice in traditional American jurisprudence, be able to subpoena from the executive branch relevant documents that could be used to devastate Trump's alternative fact-based assertion of perfection.
An impeachment trial is not a criminal trial in which the prosecution is forbidden from calling the defendant to the witness stand. Under the 5th Amendment to the Constitution, a criminal defendant cannot be compelled to testify against himself and the prosecution cannot comment on that failure to testify nor can the jury consider the defendant's failure to testify. However, in a civil case, the plaintiff has the right to call the defendant to testify. The defendant in a civil proceeding of course has the right to assert his 5th Amendment privilege in response to individual questions, but that refusal to testify can properly allow the jury to conclude that the defendant has something to hide and is therefore guilty of the acts alleged.
An impeachment trial is no different. It is a civil case because the penalty is not imprisonment but removal from office. Indeed, the Constitution expressly provides that once removed from office, the impeached official is then "subject to indictment." Here, Trump could refuse to testify in response to specific questions based on his 5th Amendment privilege but his refusal to do so would support the conclusion he is guilty. Any claim by Trump of executive privilege also is unlikely to prevail since he has already waived any such privilege by virtue of releasing the summary of the July 25th call and his public statements about his role with Ukraine.
The initial decision-maker on such legal issues at the Senate trial will be Chief Justice of the Supreme Court John Roberts, whom the Constitution designates as the public official who "presides" over the impeachment trial of a president. While Chief Justice Roberts' decisions can be overruled by 51 senators, it may not be so easy for Mitch McConnell to muster those 51 votes. Alaska Senator Lisa Murkowski has already made it clear that she is in favor of a serious consideration of the facts. If two more senators take the same constitutionally required position, we would have a fair trial with live witnesses.
Additionally, at an impeachment trial there will not be the opportunity for the Republicans to delay the process by litigating final decisions of Justice Roberts or 51 senators. Trials do not ordinarily adjourn for parties to appeal evidentiary and procedural issues. The practice is different in grand jury and House investigations, where privilege issues can be exhaustively litigated all the way up to the Supreme Court. There is no avenue of appeal from the Senate once a final decision on witnesses and the scope of their testimony is rendered by Justice Roberts or overruled or decided by 51 Senators. The U.S. Constitution provides that "the Senate shall have the sole Power to try all Impeachments" brought by the House.
In essence, Mitch McConnell may not, as he has suggested, have the ability to control the format of the impeachment trial to exonerate Donald Trump. The final rules of the trial may ultimately rest with Justice Roberts to call "balls and strikes," as he famously described how he viewed his role as a Supreme Court Justice at his confirmation hearing, and whose legal and moral authority would have to be overruled by 51 senators. In the final analysis, what cannot be comforting to Donald Trump is the possibility that the Senate will choose to exercise its constitutionally mandated duties.
(L-R) President Donald Trump shakes hands with Senate Majority Leader Mitch McConnell (R-KY) during an event about judicial confirmations in the East Room of the White House on November 6, 2019 in Washington, DC. More than 150 of the president's federal judicial nominees have been confirmed by the Republican-controlled Senate.
Nick Akerman is a partner at Dorsey & Whitney law firm, a former Assistant Special Watergate Prosecutor and a former Assistant United States Attorney in the Southern District of New York.
The views expressed in this article are the author's own.
