Item by item, the impeachment trial rules enacted by Senate Republicans are blatantly unfair to the public interest, but one rule in particular deserves more criticism than it yet has received.
Even after stacking the deck against calling any witnesses in the first place, Majority Leader Mitch McConnell wasn’t satisfied. His rules provide that even if, after what amounts to nearly a week of this trial, senators do vote to allow witnesses, those witnesses must first be “deposed” outside the Senate chamber and then senators must vote again before hearing them as live witnesses.
Except under unusual circumstances in which both sides agree to this deposition requirement, the rule is procedurally inane. It completely upends the ordinary purpose and use of depositions, especially in a criminal rather than civil proceeding.
While a presidential impeachment trial is not, strictly speaking, a criminal trial, it is highly analogous to one, with the difference that the interests in transparency are greater, not lesser, than in a criminal trial. The purpose is to decide if the people of the United States need protection from an executive abuse of power, so the public interest lies in making as much information available as possible. McConnell’s requirement for a deposition will further delay, and perhaps deny, the revelation of relevant information.
For that matter, a deposition is not ordinarily part of any actual trial, civil or criminal, at all. When used at all, it is part of pretrial activity, not something occurring once a trial has commenced. It is most commonly part of civil, not criminal proceedings. To quote the Legal Information Institute [emphases added], “A deposition is a witness’s sworn out-of-court testimony. It is used to gather information as part of the discovery process and, in limited circumstances, [its substance] may be [entered into evidence and] used at trial. … Depositions usually do not directly involve the court. The process is initiated and supervised by the individual parties. … Depositions are usually hearsay and are thus inadmissible at trial.”
In the context of a criminal trial, depositions are rarer, and they serve a different purpose. As summarized in a Lawyers.com explainer, “In criminal cases, depositions are normally taken to preserve testimony from a witness. A deposition isn’t meant as a discovery device in a criminal case.” Furthermore, says the explainer, “The vast majority of states allow criminal depositions only when a judge has concluded that there’s a good chance that an important witness will be unable to testify at trial.” In other words, if a witness may not be available during a trial due to reasons such as health or safety, he may be deposed before trial.
That’s why it was technically not improper for the House Intelligence Committee to depose witnesses before holding live hearings with them: Those depositions came in what by analogy was the indictment, or pretrial, stage. (Even so, I opposed them as running counter to the spirit and necessities of impeachment.)
Obviously, if someone such as John Bolton is “available” to be deposed once the Senate trial begins, he would be equally available to testify at the trial itself. There is no good reason to prescreen his testimony, or to hide it from the public, if he can just provide witness in open court. And because the main goal of an impeachment trial is to ascertain the truth about whether a president abused his office (while there is no risk to the president of imprisonment or other loss of ordinary civic privileges), a deposition actually would get in the way of the public interest. It would interrupt the trial, conflict with its purpose, and, if not followed by live testimony, might be used to keep the public in the dark. Even if the deposition transcripts are later made public, transcripts never have the power of live testimony.
Yes, the Senate has the power to do what it wants. During the Clinton impeachment trial, the only three new witnesses were deposed rather than afforded live testimony. In that case, though, all sides stipulated to the basic facts, and agreed to that system, for good reason: to keep explicit sexual talk from airing publicly, from the Senate floor no less.
In this year’s Senate trial, there is no agreement by the sides and no reasons of social propriety at issue. McConnell’s rule is completely indefensible.
