January 29, 2020

Whitehouse Asks Whether ‘Missing Witness’ Rule Lets Senators Draw an Inference against White House from Blocking of Key Witnesses

“Missing witness” rule, based on long-standing Supreme Court precedent, lets a jury surmise that a witness blocked from testifying by a party in the proceeding would have testified against that party

Washington, DC – During the impeachment trial of President Donald Trump in the Senate today, U.S. Senator Sheldon Whitehouse (D-RI) asked House managers whether the “missing witness” rule—allowing jurors in court cases to draw an inference when a party blocks a witness from testifying against them—ought to apply to the White House blocking key witnesses and documents from being presented in trial.

“The ‘missing-witness’ rule—which dates back to 1893 Supreme Court case Graves v. United States—allows one party to obtain an adverse inference against the other for failure to produce a witness under that party’s control with material information.  Here, one party, the President, has prevented witnesses within his control from testifying or providing documents.  Do the House managers believe Senators should apply the missing witness rule here, and if so, what adverse inferences should we draw about this testimony and documents?” Whitehouse and colleagues asked.

The missing witness rule says that, if a witness is “peculiarly within [the] power” of a party or would normally be expected to support that party’s version of events, and that side doesn’t call that witness, the jury can draw an “adverse inference.”  That means a jury can assume that that witness would not have supported that party’s position.  A similar rule permits a jury to draw an adverse inference from a party’s willful failure to produce relevant documents in its control.

Trump’s team has argued on several occasions during the course of the impeachment trial that judicial principles, such as due process, ought to apply to the impeachment process.

In this case, witnesses like White House Chief of Staff and Office of Management and Budget (OMB) Director Mick Mulvaney, Assistant to the President Robert Blair, and top OMB official Michael Duffey – all of whom would have direct knowledge of the blocking of aid to Ukraine – are “peculiarly within [the] power” of the President because they are White House or Executive Branch officials.  If the President’s claims that he did not condition aid to Ukraine on a White House meeting or meritless investigations that would benefit his reelection campaign were true, one would also expect that former National Security Adviser John Bolton would support President Trump’s position.  (He would, for example, be able to testify about Trump’s general interest in corruption, or his concern about burden-sharing.) 

The House of Representatives has also subpoenaed numerous documents that would shed light on the President’s actions and motivations, including materials from the White House, the Department of State, OMB, and the Department of Defense.  Senate Minority Leader Chuck Schumer also requested that the Senate subpoena many of these materials at the beginning of the Senate trial.  The President refused to turn these documents over to the House, and opposed producing them in the Senate.

Based on the missing witness rule, because President Trump has not called those witnesses the Senate can assume that those witnesses would not support the facts as laid out by Trump’s team.  Because the President had willfully refused to turn over relevant documents, the Senate can also assume that those documents would not have supported his position.

Senators Richard Blumenthal (D-CT), Cory Booker (D-NJ), Chris Coons (D-DE), Amy Klobuchar (D-MN), Patrick Leahy (D-VT), Edward J. Markey (D-MA), Gary Peters (D-MI), and Tom Udall (D-NM) joined Whitehouse in asking the question.

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