Rules, Rules, Rules: Senate On Trial (Not Just Trump)


U.S. Senate chamber

Now that President Donald Trump’s Senate trial has begun there are some critical points to keep in mind. All analysis, up to now, is based on the very low probability that 14 Republicans would break party ranks to convict Trump on the two articles of impeachment (Abuse of Power & Obstruction of Congress).

It is not likely they will abandon Trump, despite two recent developments. The nonpartisan Congressional Budget Office concluded Trump violated the law by withholding Congressionally approved assistance to Ukraine.  And Lev Parnas, an associate of the president’s personal lawyer Rudolph W. Giuliani, said that Trump approved and directed public tax dollars to influence the election by asking Ukraine to investigate his potential main rival, former Vice President Joe Biden.

Republican senators won’t break from him because these “facts” don’t matter in their upcoming primary elections. It doesn’t matter if they lose liberal independents, since they never had them, and in most states these independents don’t vote in the primaries. As long as they can keep their core Republican primary voters, who are 90 percent-plus behind Trump, these Republican senators will win the primary.

But then it gets more problematic, since winning their general elections could be severely jeopardized if the public perceives the trial as phony or not taken seriously by the Republicans. More important, the conservative independents, who are more Republican than Trumpers, could be swayed to vote for a Democrat who believes in the rule of law. That doesn’t mean those voters would necessarily opt for liberal candidates, for they could just sit on their hands and not vote. This is what makes the senate Republicans vulnerable in the general election, much more than their Democratic challengers.

For instance, there are 22 Republican senators up for reelection in 2020, while there are only 12 Democrats. Ballotpedia did an analysis of these races using the 2016 presidential election and ratings from three of the top organizations analyzing the races (Cook Political ReportSabato’s Crystal Ball, and Inside Elections with Nathan Gonzales) and this analysis identified 12 Republican incumbents and 5 Democratic incumbents as potentially vulnerable. The Republicans have a greater exposure.

The Democrats do not need to win the Senate impeachment trial by convicting Trump, no matter how much evidence that he should be. If the Republicans refuse testimony or admission of documents, polls indicate that would alienate more voters than anything else. A poll taken by ABC News and The Washington Post on December 10, before the House voted for impeachment, showed 70 percent of Americans believe that administration officials should be able to testify. That attitude crossed party lines; 79% of Democrats, 64% of Republicans and 72% of independents agree that Trump should allow them to appear in a Senate trial.

The struggle to control the trial’s image will not be a high drama TV event. The senators do not speak! Their questions or motions are submitted on paper to the presiding officer, Supreme Court Chief Justice John Roberts, who decides whether to bring them forward. If he refuses, he can be overruled by a simple majority of 51 senators. Almost all of the TV political pundits have made much of the 51-vote rule, which allows the Senate to create its own procedural rules for the trial. It gives narrow control of the trial to the Republicans, since there are 53 of them.

There is a slight wrinkle in that description because the Standing Rules of the Senate detail the rules of order of the United States Senate. Normally it takes a two-thirds vote to alter any of the 43 standing rules that were last adopted in 2000. These rules could serve as a possible hurdle for the Republicans, and they may seek to alter them to protect Trump.

It can be argued that all rules in the Senate trial will be procedural rules. However, there are standing rules, which normally supersede all procedural rules, such as lowering the threshold for appointing judges. There may be an opportunity for Democrats to use them to their advantage and for the Republicans to either accept their interpretation or vote to oppose it – in effect changing the standing rules.

There are two standing rules that could present such a situation, but these two examples would have to be vetted by a parliamentarian to determine if they would apply in the Senate Trial.

The first is the right of any senator to call a closed session as long as the motion is seconded. This could be done by the Democrats after the initial two presentations but before the House Managers give their final presentation (which is what is in the procedural rules). This would allow the Democrats to adjust the timing of their last word for a better TV time to allow the most public to witness it. They could use the closed session to determine which Republican Senators are wavering or what the Democrats best summary might be to persuade them when they return to the full open trial session.

The second, is the right of any senator to place a hold on a motion to prevent it from reaching a vote on the Senate floor. The Democrats could request such a hold if no testimony has been received. They would vote to lift the hold if testimony was allowed.

In the past, both Democratic and Republican Senate majority leaders had employed a “nuclear” option, by using just a majority vote to permanently alter the standing rules. Both actions had to do with eliminating the 60-vote rule for approving federal judicial appointments, including Supreme Court nominations.

This means that the Republicans probably could exercise that authority; with 51 votes they could do anything. But if they they use this nuclear option, it would appear to the public as excessive force in manipulating the senate trial to Trump’s advantage. That could be the straw that breaks the public’s back in seeing the Republican-run senate trial as a fair one.

Most dangerous to the Republican senators seeking reelection this November, is that this move could dampen the support of their traditional conservative constituents to get out and vote for their reelection. Interestingly, one of the few mentions of the two-thirds rule being needed to change the senate’s standing rules was brought up by Fred Lucas, a reporter from the conservative The Daily Signal, which is  funded entirely by The Heritage Foundation.

The conservative tradition is to respect the law and procedures. Senate Majority Leader Mitch McConnell rejecting the request by Senate Minority Leader Chuck Schumer to have four White House officials testify during the impeachment trial is going to hurt the Republicans more than the Democrats. When the Republicans realize that problem, they will likely offer to repeat the process that was used in President Bill Clinton’s trial — having off site testimony videotaped and then selected portions shared with the full senate.

Having live testimony with cross examining would make for a huge TV audience, but given the character of those testifying, the spectacle would likely confuse rather than educate the public on Trump’s guilt. Plus, there is no telling what they will say. In the Clinton senate trial, all of those testifying had done so before, so it was known what they were going to say.

Democrats should propose having Chief Justice Roberts make the final decision on what portions of the videotaped testimony should be shared. Although the Republicans could overrule his decision, that action will be remembered by the public long after what was said in the testimony.

The bottom line for the Democrats, and the Republicans as well, is that their behavior will be judged as much as President Trump’s. Since he will not be  present, the actions of the House Prosecution Managers and the President’s Defense Team will receive the immediate attention of the public watching and the media personalities commentating afterwards.  

Nick Licata
Nick Licata
Nick Licata, was a 5 term Seattle City Councilmember, named progressive municipal official of the year by The Nation, and is founding board chair of Local Progress, a national network of 1,000 progressive municipal officials. Author of Becoming a Citizen Activist. Subscribe to Licata’s newsletter Urban Politics


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