Impeachment Update - Teri Kanefield

To see where things stand, we have to back up a bit.

Senate Rule 1 (Senate rules) says the Senate trial kicks off when the House sends over notice of the impeachment:

(As a few of my clever followers on Twitter pointed out, the word “whensoever” takes on added significance, given the current situation.)

Pelosi isn’t moving—which has the GOP frustrated: Their plan is to get a trial over with fast.

Lindsey Graham accused Pelosi of using the Senate rules to her advantage. He then proposed a rule change to allow the Senate to move forward without the notice—but 2/3 of Senators present are needed to change the rules, so that idea won’t go anywhere.

As per the Constitution, the Chief Justice “presides.” Senate Rules V and VII provide that the Chief Justice shall direct preliminary preparations and “may” make all orders and rulings that an ordinary judge would make. (“May” means he can defer the decision to the Senate.)

The hitch is that even if Roberts does make a ruling, he can be overruled by a majority of Senators. This gives a majority of Senators a great deal of power over evidentiary and other decisions—which is why both sides are maneuvering to try to get enough votes.

McConnell says he wants the same procedures that were in place during the Clinton trial.

This sounds good—except that the circumstances that led the Senators to enact those rules were entirely different, and moreover, McConnell is maneuvering to change those rules midstream.

Schumer explains that McConnell is intentionally misleading people about the Clinton trial.

First, in the Clinton impeachment, the House Managers were allowed to call witnesses. In fact, in the Clinton trial, the Republicans DID call witnesses. Moreover, McConnell himself advocated for witnesses in the Clinton trial.

So when McConnell says that the Democrats are trying to “deviate from a unanimous bipartisan precedent” set in the Clinton trial, he’s misleading Americans.

McConnell wants this:

The House managers (acting as prosecutors) present their “opening” arguments.
Trump’s defense responds.
The Senators pose written questions. (Senators aren’t allowed to speak!)
Then they decide whether to call witnesses.

Schumer accuses McConnell of planning for the “opening arguments” to be the only arguments.

He says McConnell wants to “postpone the decision as long as possible so that it becomes a foregone conclusion that no witnesses or documents will be obtained.”

Another difference between the Clinton and Trump impeachments: With Clinton, all witnesses had already testified under oath. Everyone knew what they would say. In Trump’s case, as we all know, Trump ordered people not to testify, and they obeyed him. He is also refusing to disclose relevant documents.

In a normal situation, if the President obstructed the House, the Senate would use the trial to get to the truth.

This is what trials are for. Everyone knows that.

The Senate rules specifically give the Senate power to compel witnesses:

There’s nothing in Rule VI that says “subject to judicial approval.” Thus the Senate rules basically assert that they don’t have to wait for the courts to decide whether the Senate has authority to call witnesses. Moreover, the Constitution gives the Chief Justice a role. No need to go to the courts. The judiciary branch comes to the Senate.

Also while the Republicans were accusing Clinton of lying about an affair under oath, sleuths were uncovering evidence that they themselves cheated on their wives and lied about it.

The Republicans countered accusations of hypocrisy by arguing that the case wasn’t about sex. It was about lying under oath.

The public wasn’t buying it. A clear majority of the public said the case was about lying about an affair— and most of them saw Republicans, who had also lied about affairs, as hypocrites.

The Republicans wanted the trial over quickly. So did the Democrats.

Also, this is important: During the Clinton impeachment, Clinton’s approval shot up to 73%.

Impeachment was hurting the Republicans. Clinton was embarrassed. So they came to an agreement that would result in a short trial.

Up front, though, they couldn’t decide whether to have Monica Lewinsky testify.

The Democrats didn’t want her there (obviously it would be personally embarrassing for Clinton.)The Republicans were also concerned about having her testify. It was staring to look like the Republicans were weirdly fixated on the lurid details of Clinton’s sex life—so they were afraid that having Lewinsky testify would backfire on them.

Both sides, therefore, agreed to postpone the decision about live witnesses (remember, witnesses were called).

McConnell has now announced he has enough votes to pass a “resolution” at the start of the trial setting up the procedures. However, he’s refusing to show the resolution until after Pelosi sends the articles to the Senate.

Pelosi wants to see the resolution before she sends the articles.

What’s happening now is a combination of political maneuvering and legal strategy.

We don’t know everything Pelosi knows, which makes it hard to predict what she will (or should) do.

But the delay is clearly helping the Democrats. Unlike in the Clinton impeachment, Trump’s numbers are currently on a downward slope. On Dec. 17, his approval was 43.8 on the 538 aggregate. Now it is at 41.9%, a long way from Clinton’s 73%.

McConnell takes jabs, mocking Pelosi for saying Trump posed an imminent danger and then sitting on the articles.

The obvious response is that he announced that he’s working with Trump to dismiss the case quickly, promising a sham trial.

How long will Pelosi delay? What will be her next move?

All anyone can really do is guess. What people can do is keep up the pressure, particularly if you live in Red States. Gotta love what they’re doing here in Mitch McConnell’s office.

Not a dumb question. The House selects managers who act as prosecutors at the trial.

In the Johnson trial, there were 7 managers. In the Clinton trial, there were 13 managers. Interesting tidbit: One of the House Managers in the Clinton trial was Sen. Lindsey Graham, who, at the time, were Representatives. Two others remain in Congress, Steve Chabot (OH) and Jim Sensenbrenner (WI)

The framers of the Constitution considered giving the trial to the judicial branch, but decided against it. They deliberately gave it to a political body elected by the people. Giving it to Congress makes it quasi-judicial and partly political. . .

There are advantages and disadvantages.

Giving it to an elected body necessarily makes it political. It also prevents the judges from being people appointed by the President. The framers wanted the people to weigh in on whether a president would be removed.

Graham and pals certainly don’t lack chutzpah.

It’s hard to give the likelihood because I don’t have all the facts. I’m confident backroom wrangling is going on. I think the testimony has more power in a trial, but that might not be possible.