Now that the House Judiciary Committee has approved Articles of Impeachment against the President and it’s likely that the full House will vote on those articles early next week, attention is already starting to shift to the Senate, which has the Constitutional responsibility to hear the evidence presented by the House of Representatives and whatever legal team the President sends in his defense. All 100 Senators will be required to be present for this trial and, when it is over they will debate the matter and then vote on the Articles of Impeachment.
As things stand, there are no rules regarding how the impeachment of a President or other Executive Branch official is supposed to proceed. The closest we have to that are the rules that the Senate followed by in 1868 during the Impeachment trial of President Andrew Johnson. When it came time for the Senate to preside over the Impeachment trial of Bill Clinton, the decision was made to abide by those rules, with some changes made to reflect the changed nature of the Senate in the ensuing 130 years. In Johnson’s case, the Senate trial took place over an extended period from March to May 1868, while the Clinton trial lasted from January 9 to February 12, 1999. It’s worth noting, though, that the trials in both cases did not take place every day. There is, however, no requirement that the Senate follow those rules in the event President Trump is impeached. The Senate could do that, or it could decide to toss the rule book aside and come up with new rules that would allow for the kind of streamlined process that some Republican Senators seem to be talking about here
In this respect, it is worth noting that the last Impeachment trial in the Senate, of Federal Judge Walter Nixon (no relation to the former President) was not even conducted by the full Senate. Instead, the Senate created a committee to which it assigned the task of gathering the evidence and hearing from witnesses after which it was to report back to the Senate. After he was convicted and removed from office, former Judge Nixon challenged the Senate’s procedure, but the Supreme Court eventually ruled that the Senate is the sole arbiter of its rules and that the Courts should not second guess the procedures it decided to use in that case. (See Nixon v United States 506 U.S. 224 (1993). It’s unclear if the Senate could use a similar procedure in the case of a Presidential Impeachment, but the important part of the Supreme Court ruling is the fact that it established that the Senate is the sole arbiter of the rules in an impeachment trial, meaning that there is no ground for appeal if the Senate chose to adopt rules that essentially tied the hands of the House Managers charged with prosecuting the case against the President.
The Constitution, of course, requires a two-thirds vote in the Senate to convict and remove a President, or any other impeached official, from office. Realistically speaking, the odds of that happening are somewhere between slim and none since the fact that nearly every Republican member of that body is either a Trump loyalist or a sycophant or coward afraid to stand up to him even when he is engaged in obviously engaged in wrongdoing. Even before the Ukraine matter became public and the conversation was about potential impeachment with regard to the matters raised in the Mueller Report it was apparent that the Senate had already concluded that they would be voting to acquit the President. Now that impeachment is just days away and a trial just around the corner, the extent to which Republicans are going to fix the process to the President’s benefit is becoming evident:
Senate Majority Leader Mitch McConnell and President Donald Trump’s top lawyer sketched out a plan Thursday to coordinate closely for an impeachment trial but haven’t reached agreement on a final strategy to defend Trump against charges of high crimes and misdemeanors, according to two sources familiar with the conversation.
The closed-door meeting Thursday between the Kentucky Republican and White House counsel Pat Cipollone occurred as Senate Republicans and the White House have diverged on what they would like to see take place in the looming trial in the chamber. Trump has made clear he wants witnesses to testify, in person, while senators — including McConnell in private — have warned that going down that path could lead to a politically precarious slippery slope in the GOP effort to acquit the President.
“We are having a lot of good conversations with Senate Republicans,” Eric Ueland, the White House director of legislative affairs, told reporters as he departed the meeting with Cipollone. “We will continue to do that here over the next few days and weeks as we work through all these issues and priorities the President has outlined when it comes to where we should go on these articles.”
While no final decisions have been made, McConnell and Cipollone agreed that when a trial begins, the House Democratic impeachment managers would have an opportunity to present, followed by the Trump’s lawyers presenting the President’s defense, the sources said.
At the conclusion of the presentations, the White House may provide its own briefing to Senate Republicans about the next steps it would want to see in the trial, including possible witnesses it would like to be called, the sources said.
McConnell would have the opportunity to gauge where his conference stood on the trial, including whether there were 51 GOP votes in place to bring the trial to a close and hold a final vote on the two House articles of impeachment.
A quick end to the trial is something the majority leader has signaled to his members he supports as the best path forward. He’s also expressed that to Trump himself in phone calls, according to people familiar with the discussions.
“My hope is that it will be a shorter process rather than a lengthy process,” McConnell said in an interview with Fox News’ Sean Hannity on Thursday night. McConnell made clear, however, that those decisions would be made “in total coordination with the White House counsel.”
“There will be no difference between the President’s position and our position in how to handle this,” McConnell told Hannity.(…)
One thing that McConnell, at least at this point, is certain of: the eventual outcome.
“There’s no chance the President will be removed from office,” he told Hannity. “My hope is there won’t be a single Republican who votes for these two articles of impeachment.”
Aaron Blake at The Washington Post comments:
[I]t’s worth taking stock of how remarkable a statement it is — giving the White House any say over how the trial would be handled would be something, but McConnell says he’ll coordinate everything — and how discordant it is relative to many of his fellow GOP senators.
Those senators have, in many cases, declined to comment on impeachment and the Ukraine scandal because they will serve as jurors in the Senate trial. For some, it was certainly a cop-out to avoid having to comment on the substance of the Ukraine scandal, which, however you slice it, doesn’t look good for Trump. But now that McConnell is effectively saying he’ll let the defendant’s lawyers dictate how the trial will be handled, those professions of respect for the process ring pretty hollow.
(…)
Of course, in context, this is hardly that surprising from McConnell. The Senate majority leader has in recent years reveled in his political victories, even as he’s drawn criticism for his ruthless tactics. He has said that the most consequential thing he did was block President Barack Obama’s nomination of Merrick Garland to the Supreme Court. In doing so, he didn’t even give him a hearing and cited a somewhat mythical “Biden rule” against confirming justices in the final year of a president’s term.
(…)
[G]iven his attitude toward that — and the political payoff the strategy has incurred — is it really any surprise McConnell is emboldened enough to come out and just say he’ll let the White House dictate its own impeachment trial?
Were this a criminal trial in a court of law, this would be equivalent to the Jury Foreman coordinating the attorney for the Defendant or the District Attorney over how the trial would be conducted. Of course, an impeachment trial in the Senate is not similar to a criminal trial, and as I’ve argued myself before, impeachment in either the House or the Senate is as much a political process as it is a Constitutional one. Nonetheless, the absolute brazenness with which McConnell is acting here would be shocking under ordinary circumstances. Instead, it’s just par for the course.
It is, of course, outrageous that Senate Republicans have already made up their minds on the issue of Impeachment before they have even heard any evidence and before the House has even acted. In effect, they are the jury in what amounts to the Constitution’s’ version of a trial. If this were a court of law all of them would be disqualified from serving on a jury because they have already prejudged the case they would be required to hear. This is not a court of law, of course, and there is essentially nothing about the Impeachment and trial process that can deal with a Senate that has already made up its mind.
Given the extent to which the Republican Party has become nothing but a group of Trump true believers, sycophants, sellouts, and towards the fact that a majority of the Senate GOP Caucus has so obviously made up its mind is hardly surprising. As I have said before, it’s clear that there would not be 20 Republicans who would join with Democrats to convict and remove the President from office. That fact, however, doesn’t make what we’re watching unfold any less outrageous, though. The Constitution gives the Senate the duty to preside over the trial of an impeached President, but these Senators have already made clear that they would put party, and loyalty to the President, ahead of the country. They have made clear that they would essentially ignore whatever evidence might be presented to them regarding the President’s wrongdoing. It’s not surprising, but it is outrageous and it is yet another reason why this party cannot be taken seriously and cannot be trusted with power.
