Senate Republicans Have Already Made Up Their Mind On Impeachment

The House of Representatives has not even acted on impeachment, but Senate Republicans have already made up their mind.

Even before the House of Representatives has opened an impeachment inquiry, the Senate Republican Caucus is making clear that it would quickly dispose of any trial in the Senate based on Articles of Impeachment that have yet to be drafted:

GOP senators say that if the House passes articles of impeachment against President Trump they will quickly quash them in the Senate, where Majority Leader Mitch McConnell (R-Ky.) has broad authority to set the parameters of a trial.

While McConnell is required to act on articles of impeachment, which require 67 votes — or a two-thirds majority — to convict the president, he and his Republican colleagues have the power to set the rules and ensure the briefest of trials.

“I think it would be disposed of very quickly,” said Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.).

“If it’s based on the Mueller report, or anything like that, it would be quickly disposed of,” he added.

Sen. John Cornyn (R-Texas), an adviser to McConnell’s leadership team, said “nothing” would come of impeachment articles passed by the House.

Given the Senate GOP firewall, Cornyn, who’s also a member of the Judiciary Committee, said he doubts that Democrats will commence the impeachment process.

“It would be defeated. That’s why all they want to do is talk about it,” he said. “They know what the outcome would be.”

Republicans hold a 53-47 majority in the chamber, and Vice President Pence would cast the tie-breaking vote if necessary.

Senate Republicans say that an impeachment trial would be given the bare minimum amount of floor time.

“Why on earth would we give a platform to something that I judge as a purely political exercise?” said Sen. Thom Tillis (R-N.C.), another member of the Judiciary Committee. “We have to perform our constitutional duty, but if people think that we’re going to try and create a theater that could give you the perception that this is a matter that rises to the level of Watergate, that’s nonsense.”

Tillis said he would support McConnell bringing the impeachment process to a quick close, and that any kind of extended trial would be “rewarding what I view as bad behavior on the part of the House.”

Tillis, who is up for reelection next year, said many independents and moderates in his state are tired of impeachment talk. 

(…)

McConnell would have broad authority to determine how a Senate trial would play out. He could stifle the arguments of Democratic prosecutors from the House as long as he’s backed up by his fellow GOP senators.

Supreme Court Chief Justice John Roberts would preside over a Senate trial, but he would be constrained by the rules and traditions of the Senate, where the majority leader sets the schedule and has the right of first recognition.

Under the Senate manual’s rules for impeachment trials, the presiding officer — likely Roberts — would rule on all questions of evidence, but any senator could ask for a formal vote to appeal a decision. Under the Senate rules, it takes a majority to sustain or overrule a ruling from the presiding officer.

Democrats would need to persuade at least four Republicans to break with McConnell in order to bring in any witnesses or exhibits he decides to block.

That would mean winning over moderates like Sens. Lisa Murkowski (Alaska) and Susan Collins (Maine) or vulnerable senators in swing states, namely Sens. Cory Gardner (Colo.) and Martha McSally (Ariz.).

Murkowski told The Hill on Thursday that she hasn’t given much thought as to how a Senate trial might play out.

Democrats, however, are skeptical they would get much, if any, Republican support to overrule McConnell.

“There are 47 Democrats. On a good day, even when the president is at his most outrageous level, only three Republican senators will publicly say so,” said Senate Democratic Whip Dick Durbin (Ill.).

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 Court 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 in the event President Trump is impeached.

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 hearing here 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 an cannot be trusted with power.

FILED UNDER: Congress, Donald Trump, Impeachment, Law and the Courts, Politicians, U.S. Constitution, US Politics, , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Modulo Myself says:

    “Why on earth would we give a platform to something that I judge as a purely political exercise?” said Sen. Thom Tillis (R-N.C.), another member of the Judiciary Committee. “We have to perform our constitutional duty, but if people think that we’re going to try and create a theater that could give you the perception that this is a matter that rises to the level of Watergate, that’s nonsense.

    The GOP uses words as if it were 2011 and politics was keeping America from compromising. No one really believed that then, but this is not a doable belief going forward. Impeachment will fail but it will humiliate and degrade the Republicans, and have only positive political effects for the Democrats. Trump’s a crook and human shit and outside of the cult everybody knows this.

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  2. Mikey says:

    “We have to perform our constitutional duty, but if people think that we’re going to try and create a theater that could give you the perception that this is a matter that rises to the level of Watergate, that’s nonsense.”

    You fucking hypocrites thought Clinton lying about a damn blowjob rose to the level of Watergate. But now, in the face of a special counsel report that all but says straight out the President committed impeachable obstruction of justice, you say this? Fuck you.

    And the LAST thing you want to do is perform your Constitutional duty. You’re avoiding that like the plague.

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  3. Jay L Gischer says:

    Engaging in a fast track impeachment process in the House has this problem. The Senate will quickly try and dispose of the issue, which will then be dead in the public mind, just as all the impeachment bills for Obama were just as dead. And all those “repeal Obamacare” bills passed, too.

    What the House needs to do is keep the process alive, and slowly dripping out news. Public opinion is a battleship that needs to be turned. Just because I’ve made up my mind doesn’t mean everyone else has. They need to do something like the (sham!) Benghazi investigation.

    I think that this is what Pelosi already has in mind. I trust her political instincts and her ability to get the best of Trump a lot. People like Graham and McConnell would be more formidable adversaries, except since Trump insists on obeisance from them, the focus will all be on Trump. This is a good situation to be in, frankly.

    The way out of this is political, and a political process that reinforces the rule of law. You can’t use law to move politics, it mostly works the other way around.

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  4. Daryl and his brother Darryl says:

    No surprises here…You cannot look for pond-scum, like McConnell and Tillis and Cornyn and Graham, to have the best interests of their country in mind. Especially when Barr is giving them all the cover they need.
    But it needs to be said, too, that the Democrats inaction has paved the way for this. They have allowed the Republicans to completely shape the messaging on this. Very few Americans know what the Mueller report says. In the vacuum left by Democrats, Republicans are free to lie their collective asses off about it.
    It’s obvious Impeachment is a dead-end…but that doesn’t mean Democrats shouldn’t be doing everything in their power to keep this alive. Yet, today, while we are all back at work after the 3-day holiday…Congress is still on vacation.
    This is a pathetically stupid way for the Republic to end.

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  5. Paul L. says:

    HA,HA,HA,HA,HA,HA,HA,HA This reminds me of the RBG level legal reasoning of Imani Gandy that a Presidential election is just like discovery in a trial so Romney’s/Trump’s tax returns showing that they paid zero taxes must be made public.

    [The Republican Party] cannot be taken seriously and cannot be trusted with power.

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  6. the Q says:

    Here’s what the Dem strategy should be: Impeach immediately this summer. Let the Senate GOP side with the tyrant. Let them publicly show support for Trump with their votes on the record.

    When next year comes, his tax returns, bank loans and other info will be available as a result of the lawsuits. This info will confirm the corrupt, lying POTUS is indeed compromised and the GOP Senators who prematurely sided with Trump will now be squarely in the cross hairs of the voters who will decide their choosing party over principle was the wrong decision.

    This way, the Dems can gain info by the impeachment process, pin the GOP Senate in a corner, then reap the fallout in the 2020 races.

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  7. Daryl and his brother Darryl says:

    @Paul L.:
    So…English is…like…your 3rd or 4th language?

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  8. Daryl and his brother Darryl says:

    I’m no fan of Justin Amash…but he’s out with another Twitter thread that establishes him as the sole owner of a spine in the Republican Party.
    https://twitter.com/justinamash/status/1133410149996146688

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  9. Teve says:

    if somebody wants to know what’s the essential difference between Democrats and Republicans, they should just dwell on the fact that Democrats consider Obama to be the best president of their lifetimes, and Republicans consider Trump to be the best president of their lifetimes.

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  10. Paul L. says:

    @Daryl and his brother Darryl:
    I can understand why you can easily baffled by the legal or otherwise logic of Imani Gandy and Ruth Bader Ginsberg.
    But Pedantry and cluelessness do not indicate intelligence.

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  11. Guarneri says:

    So how are the perpetually angry and deranged doing today.

    Valium, people, Valium.

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  12. Gustopher says:

    8-12 weeks of impeachment hearings in the House, dominating the news cycle daily — possibly stretched out if there are subpoena issues.

    Articles of impeachment, in plain language, showing the crimes and misdemeanors the President is accused of, with backing evidence, are drafted. This can happen piecemeal.

    If the American people are onboard with impeachment at that time, vote to impeach, otherwise go for censure. But, I think there’s a very good chance that the Democrats have made the case.

    A three day Republican run show trial with a foregone acquittal in the end.

    That could be fine. Get the Republicans in the Senate on the hook obviously refusing to take their constitutional duty seriously, and covering for their criminal President. We need to get rid of any Republican Senators we can anyway, and it destroys the “Senate has exonerated the President” argument for all but the true believers, and it charges up the Democratic base.

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  13. Kathy says:

    The GOP isn’t so much afraid of Trump, as they are of Trump’s loyal base. they’re the ones who will primary them if they step out of line.

    The problem is they’re deathly afraid. Therefore they’re not even trying to pry the base away from Dennison.

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  14. Daryl and his brother Darryl says:

    @Paul L.:

    I can understand why you can easily baffled by the legal or otherwise logic

    Again…try typing in English.

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  15. DrDaveT says:

    @Daryl and his brother Darryl:

    So…English is…like…your 3rd or 4th language?

    No way this guy speaks more than 1 language. I was thinking it’s more like his 0.7th…

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