The Constitution says that the Senate “shall have the sole power to try all impeachments.” The immediate question before us is when? Speaker Nancy Pelosi initially said that she will hold up delivering the two articles of impeachment to the Senate until the Democrats know what the rules will be. Reality is that the rules will be what the Republicans want, no matter how long Pelosi hangs back. Hence the case for getting this charade over with, and soon.
In Bill Clinton’s presidential impeachment Senate trial, leaders of both parties met and hammered out an agreement on the rules, which the Senate passed unanimously even though the Republicans had two more Senators than they do now. It’s not the number of Republicans in the Senate that is shaping this trial, it’s the intensity of loyalty to Trump that is endangering any bipartisan path forward.
Senate Majority Leader Mitch McConnell told Fox News he was “taking my cues” from the White House and “There will be no difference between the president’s position and our position” in shaping the trial. Trump has tweeted that the effort to remove him from office is an “attempted coup.” That is a pretty strong cue that McConnell will not be reaching an agreement with the Democrats on the Senate’s trial procedures.
If no agreement is reached, McConnell only needs 51 Senate Republicans to pass a resolution governing the proceedings, as long as they do not alter the current established Senate rules, which were applied to the Clinton impeachment. Changing those Senate rules would take two-thirds, or 67 votes, to pass.
Defining the difference between the two sets of rules is up to the trial’s Presiding Officer, which would be Chief Justice John Roberts. According to Adam White, a director at George Mason University’ Law School, Roberts “is very, very wary of the courts being seen as being brought into a political process” and will keep a low profile. But will he be pulled into the spotlight given the probable intensity that the trial could ignite over any of his rulings?
An example of how this conflict played out in the last impeachment was when a senator wanted the Senate doors open during their deliberations. The presiding officer then, Chief Justice Rehnquist, ruled that 67 votes would be needed given “consistent practice of the Senate for the last 130 years in impeachment trials.” The motion failed to get the 67- vote majority. The doors remained closed. What would happen if Chief Justice Roberts makes a ruling that a certain motion requires 67 votes and the Republicans strongly disagree? They could insist that only a majority vote is needed to overrule his decision, contending that their motion could be reasonably reconciled with the Senate rules. Would Roberts choose to simply defer to whatever 51 senators wish to do, even if it changes an established Senate rule?
The current Senate rules according to Hilary Hurd and Benjamin Wittes, in a LawFare blog this December, are weirdly detailed, even specifying speeches and specific times of day when things must be said and done, and yet they offer no rules of evidence or standards of proof, which matters could be defined solely by the Republicans. That leaves the Republicans controlling the trial’s content used to determine if Trump violated his oath of office.
Although the word “trial” is used, this is not a criminal or civil trial. It is a political trial. There does not need to be a violation of a criminal code, only the belief by two-thirds of the Senate members that a president is guilty of the House’s charges. With Republican leaders repeating Trump’s “witch hunt” description of the House impeachment, there is no likely outcome that two-thirds of the Senate will remove Trump from office.
So why have a trial that isn’t a real trial? Because the real jury is the public not the Senate. In fact, the Senate is not a jury so much as an active player in the trial. While the senators cannot speak and must sit and listen, any member can submit written requests to the Chief Justice, to ask questions of those testifying or to make motions to change procedures. More importantly, the majority of senators (51) can introduce new procedures at any time, as long as they do not change established rules.
Unlike common trials, this historical event will be televised, with the exception of the deliberations, assuring that this will be a “show” trial. Each party will have to calibrate their strategies based on how the public perceives their honesty and diligence in pursuing a just conclusion. The facts supporting or dismissing the two articles of impeachment will influence a far smaller portion of the public than the behavior of the parties.
And the public has been watching. Throughout the weeks of congressional impeachment proceedings against Donald Trump, 62% of adults in a December Washington Post-ABC News poll said they had closely or somewhat followed it.
McConnell seems to understand this dynamic, even if he did make a critical mistake telling Fox News that he was going to run the trial in accordance with Trump’s interests. That cost him credibility. He tried to salvage it in his reply to Senate Minority Leader Democrat Chuck Schumer’s request for live testimony from White House staff that Trump refused to allow to appear before the House Committees. Rather than just swatting Schumer down, McConnell left open the possibility of it occurring later.
McConnell has also opposed Republican suggestions that the Senate immediately dismiss any impeachment articles they receive. That would be a gift to the Democrats and would serve to amplify their characterization of the Senate Republicans as abandoning their responsibilities. The Senate has never declined to hold a trial in the 19 previous cases in which a federal officeholder was impeached, In similar fashion, Pelosi could overplay her hand by indefinitely withholding the delivery of the impeachment articles to the Senate. That would work to the Republicans benefit for the same underlying public perception — the Democrats would be shirking their duty.
The stakes are high for both parties in how this trial is seen. According to the December Washington Post/ABC poll, the public is evenly divided. Those favoring impeaching Trump and removing him from office are at 49%; those opposed are at 46%. The numbers didn’t move from October’s poll, suggesting that the hearings had practically no influence. A short Senate trial would seem to have the same result.
Could a longer trial with testimony and additional evidence move the dial either way? I doubt it. Unless there is a strong testimony quoting Trump delivering a straightforward command to get information to influence the 2020 election, each side will rely on the same arguments that they have been making for the last three months.
That poll also revealed a critical difference in the public view of Clinton versus Trump. It showed that only 33% believed Clinton should have been impeached and removed from office, with 64% believing he should not have been . That comparison is comparable to Clinton’s 70% approval rate at the time of his impeachment, with Trump’s steady low 40% approval rate.
Trump is not popular. However, a lengthy trial without a damning quote from Trump, will allow him to play the victim, at which he is a master of portraying himself. The sympathy vote could turn out critical independent voters, who are less ideologically oriented than either Republicans or Democrats. Following a long trial, they might vote against the “mean” Democrats, thus hurting their chances for winning the Senate and retaining their majority in the House.
So I end up in favor of letting the Republicans run a quick phony trial. They will satisfy their base, but not sway the independents, because they will be repeating the same boring and unconvincing points they have been making. That will deny Trump the victim role he desperately needs to play. And it will allow the Democrats to characterize the Republicans as being cravenly subservient to an ineffective leader who is more concerned with his political future than the country’s needs.