You opened the door.
Trial lawyers live in fear of that phrase.
When a trial starts, both sides know what the allegations are. Both have had enough discovery to know what the adversary will try to prove. Just as significantly, both know what their own vulnerabilities are. A litigator spends his pretrial time not just laying the groundwork for getting his own evidence admitted by the court; each side works just as hard on motions to exclude embarrassing or incriminating testimony — evidence that would be damaging to that side’s position but that a court may be persuaded to exclude because it is not clearly relevant.
For an advocate, it is a coup when the judge rules that harmful testimony is excluded. But such rulings always come with a warning label: Don’t open the door. That is, don’t do anything that makes the otherwise irrelevant evidence relevant.
President Trump’s impeachment trial has a Biden door. Adam Schiff has thrown it wide open.
The first full day of President Trump’s Senate impeachment trial was consumed by legal arguments over whether witnesses who did not testify in the House impeachment inquiry should now be subpoenaed. One proposal has surface appeal because it is reciprocal: The House managers get to call John Bolton (the president’s former national-security adviser), but then the president’s lawyers get to call former vice president Joe Biden or his son, Hunter.
Schiff has pooh-poohed this suggestion. His basic objection is sound: The admissibility of a witness’s testimony is a matter of relevance, not horse-trading. If witnesses have testimony of strong value as evidence, they should be subpoenaed, even if it means that one side gets a dozen witnesses and the other side gets none.
Yet, though he now tells anyone who’ll listen that the Bidens have nothing to do with his case against President Trump, it is Schiff who has made them highly relevant.
The House Democrats tell you that their case is straightforward: The president exploited his foreign-affairs power by pressuring Ukraine to conduct an investigation for no reason other than that it would harm a political rival and thus help Trump’s reelection. On this account, it makes no difference whether there was a legitimate basis for such an investigation. Schiff’s point is that any presidential collusion with a foreign power that could influence the outcome of an American election is an abuse of power, period.
But Schiff is smart enough to know that all abuses of power are not created equal. Common sense says it matters whether there was a legitimate reason for the investigation the president was seeking.
It is fair enough to tut-tut that a president should not conflate foreign policy and domestic politics (something all of them do to some degree). And it would certainly be prudent (even if not constitutionally required) for presidents to leave questions about who should be investigated to the Justice Department, especially when a president’s political fortunes may be implicated. All that said, though, it makes a difference whether this president is asking the foreign power to manufacture a case against a political opponent, or whether the president is instead asking for an investigation into something that truly appears suspicious.
Schiff has ignored that salient distinction from the start. And by ignoring the difference, he has — however heedlessly — painted a bull’s-eye on the Bidens. The father and son were front and center within the first ten minutes of Schiff’s opening statement at the impeachment trial Wednesday afternoon. But that was old news. Schiff kicked the door open at the start of the very first House hearing. Not content to quote from President Trump’s actual call with President Zelensky of Ukraine, Schiff insisted on presenting a “parody” that, he maintained, conveyed the unspoken essence of Trump’s message: “I want you make up dirt on my political opponent, understand? Lots of it.”
In sum, the House’s chief prosecutor represented to the American people that President Trump had asked his Ukrainian counterpart to fabricate a false case against Biden. In any court in America, that would open the door to the Trump defense team to show that this was not the president’s intention at all; he was simply asking Zelensky to look into a situation that cried out for an inquiry.
In light of Schiff’s explicit allegation, the president is entitled to an opportunity to show that there was reason for him to believe that a notoriously corrupt Ukrainian energy company had retained Hunter Biden and paid him a fortune despite his lack of qualifications; and that later, despite the blatant conflict of interest, then–vice president Biden extorted Ukraine into firing a prosecutor who was investigating the company, threatening to withhold $1 billion in desperately needed funds.
Schiff insists that Trump’s claims in this regard are false. But his mere say-so does not prove falsity, no more than his mere say-so proves that Trump wanted Ukraine to “make up dirt” on Biden. Figuring out who has the better of a factual dispute is what a trial is about. If a litigant does not want to create a dispute, it’s up to the litigant to steer clear of the issue.
Adam Schiff steered his case straight into the Bidens. The Trump team may have their political reasons for highlighting Biden’s involvement. But it was Schiff’s strategy that made the Bidens relevant. If one or both of them ends up in the witness box, they have Schiff to thank.