Trump Has Already Fixed His Impeachment Trial In The Senate

The trial phase of the Trump impeachment is set to be an absolute partisan joke.

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.

FILED UNDER: Congress, Donald Trump, Impeachment, Politicians, 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. Michael Reynolds says:

    It is therefore impossible for Trump to be exonerated. Only a genuine trial without obstruction could do that. The Senate ‘trial’ will have the same validity as a mob trial where the jury has been threatened: none.

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  2. Kathy says:

    I propose the following rules:

    1) Allow the House to present evidence and witnesses as they want, for as long as they want.
    2) Allow Republicans to skip the trial, since no amount of evidence and testimony will change their a-priori conclusion.

    Conversely, we could skip the whole thing and proceed to a vote, so long as every Republican Senator signs a document stating, under oath, that no matter what crimes El Cheeto commits, they will never even dream of voting to remove him.

    The lesson is that not all show trials are draconian affairs to railroad the innocent into prison or the gallows. Some are a farce designed to railroad the populace on their happy, submissive ignorance.

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  3. Mikey says:

    We shouldn’t expect any different. We’ve known all along the only way to rid the Oval Office of Trump’s stench is through the 2020 election.

    Hopefully we can turn out enough truly patriotic voters to overcome the GOP cheating we already know is inevitable.

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  4. CSK says:

    @Michael Reynolds:
    Actually, it’s almost identical to jury nullification.

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  5. Daryl and his brother Darryl says:

    The House should put the Impeachment in a drawer.
    Jaut say; “Fuq it, we’re not going along with your farce of a trial.”
    Don’t push it to trial, when the result is a foregone conclusion.
    History will note that Trump was Impeached.
    And that will never change.

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  6. Lounsbury says:

    @Mikey: I do not understand why the Democrats have rushed to do a Quixotic run to the Senate rather than ongoing investigation on dirt.
    Although I suppose perhaps a quick loss in the Senate on a kangeroo court sort of operation may have an electorate sense in charging up the Democrats.

  7. Jay L Gischer says:

    @Lounsbury: I’ve been wondering that, too. Here’s a thought, a possibility. Perhaps they want to force Senators to vote at a time where they might still plausibly face a primary challenge at home, which is at least consistent with what McConnell is seeking.

    This doesn’t make sense if you think you can win, but it does make sense if you are trying to pick up a few Senate seats in the 2020 election. Make them go on record as voting in favor of abuse of power. Run ads on their votes 24/7 as election day approaches. Maybe you brush off 3-5% of the moderate voters who like lower taxes or “conservative” judges or something. That’s going to have an impact in quite a few races.

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  8. Michael Reynolds says:

    @Lounsbury:
    I have great respect for Pelosi, but I think she got this wrong. The Trump Crime Family has so much more to give. She’s focused on retaining the House, and I understand the importance of that, but I think we should have gone for a broader investigation.

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  9. Andrew says:

    This has always been the way Trump has done things. If he can not rig something in his favor, he doesn’t play. Or complains the people are mean and plays the victim.
    The man is corruption. His picture with Mitch should be in the dictionary next to Corruption.

    He has sold out the United States of America for entirely his and his family & friends gain. He gives f*ckall about laws and honor, respect, and being a human.

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  10. Andrew says:

    Oh, and every Republican knows that if Mitch actually did how job. There would be so much damage being brought to light…the GOP would be DOA.
    McConnell is himself>party>country.

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  11. Paul L. says:

    @Lounsbury:

    I do not understand why the Democrats have rushed to do a Quixotic run to the Senate rather than ongoing investigation on dirt.

    The squad pushed Impeachment on the drunken granny.
    Quite a turn from the Democrats control the House so they can make the rules and impeachment is not the same as trial before a US Court to Republicans control the Senate so impeachment is the same as a trial before a US Court .
    WhatAboutism.

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  12. Jay L Gischer says:

    So, Paul L. I’m interested. Do you think it’s OK for the president to withhold taxpayer-funded and congressionally approved aid of a military nature from a foreign power until the leader of that power does the president a favor that is only of interest to his domestic political campaign?

    Seriously, I’d like you on record on this. If you go on record, I’ll be happy to put up with all of your other protestations. But otherwise, I’m not interested.

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  13. Paul L. says:

    @Jay L Gischer:
    Your framing is as dishonest Schiff ‘s summary of Trump’s Ukraine call. He claimed was ‘at least part in parody’

    Do you think it’s OK for the president to approve and be briefed on the following:
    Allow guns to be run to Mexico to manufacture evidence for “90 percent of guns recovered in Mexico come from U.S.” talking point to promote gun control.
    Sick the IRS on new tea party non profit groups to handicap them to help his reelection.
    Use DOJ/FBI/FISA to illegally spy on the campaign of the Presidential candidate of his rival party using debunked unverified Oppo research .

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  14. Michael Reynolds says:

    @Paul L.:
    Have you found that pizza parlor where Hillary runs her child sex ring yet?

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  15. Guarneri says:

    Damn it all.

    After such an impartial and fair minded process in the House.

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  16. DrDaveT says:

    @Paul L.:

    Your framing is as dishonest Schiff ‘s summary of Trump’s Ukraine call

    Dude, it wasn’t Schiff’s summary — it was Trump’s summary. Which he called ‘perfect’. And which clearly shows him shaking down a foreign government for a political favor.

    Do try to keep up.

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  17. Michael Reynolds says:

    @Guarneri:
    OK, list the parts of the House process you thought were unfair.

    Terms and Conditions: reality applies, cult answers will be dismissed, and you will be challenged to support your statements with reality-based arguments.

    Go:

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  18. Mikey says:

    @Paul L.: Is this really all you Trumpist dipshits have? A lie about Trump’s actions followed by BUTWHATABOUT BUTWHATABOUT BUTWHATABOUT?

    So lame, so predictable. Yaaaaawwn. Really…you’re just boring.

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  19. An Interested Party says:

    Do you think it’s OK for the president to approve and be briefed on the following:
    Allow guns to be run to Mexico to manufacture evidence for “90 percent of guns recovered in Mexico come from U.S.” talking point to promote gun control.
    Sick the IRS on new tea party non profit groups to handicap them to help his reelection.
    Use DOJ/FBI/FISA to illegally spy on the campaign of the Presidential candidate of his rival party using debunked unverified Oppo research .

    Curious that the president allegedly behind these awful actions was not impeached and removed from office by Republicans when they had complete control of Congress…

  20. Jax says:

    @An Interested Party: I always imagine people like Paul L staring off into the distance, drooling, wondering “Hey, really, HOW COME NOBODY EVER DID ANYTHING ABOUT THAT SHIT…..” and then Hannity comes on to read them their daily talking points and they are required to start over.

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  21. mike shupp says:

    I really hope all this impeachment story gets a decent long and objective account in future high school and college civics texts and law courses. And maybe it will, in France and Singapore and the Kingdom of Tonga. Elsewhere … I’ve got an awful feeling the books are going to record the ultimate outcome as the True and Proper Verdict of History.

    American textbooks are awfully prone to historical amnesia. I recall it was purely chance reading that led to my learning of locking up the Japanese in WW2– reputable works of history for school kids didn’t mention that in 1956. And as late as 1963 high school civics texts didn’t see to mention that blacks had problems voting in some states, or even that drinking fountains and bus seats and drugstore lunch counters were segregated. Those obviously weren’t things worthy of mention in something so sacred as a civics textbook.

    I’ve every expectation that coming school texts will follow these splendid examples. It’s the least we can do honor our nation’s traditions!

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  22. Guarneri says:

    Yes, they are almost as bad as OTB.

    https://www.youtube.com/watch?v=tNvT8njImgc

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  23. Guarneri says:

    Boy, that Horowitz report sure did exonerate Democrats and media. Crazy Repulicans…….

    https://www.youtube.com/watch?v=31eBO-A5G_I#action=share

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  24. grumpy realist says:

    @Guarneri: Considering the amount of malware that gets distributed by YouTube videos there’s no way I’m clicking on an unknown link, especially stated by someone who has shown extreme gullibility in passing around Russian-generated material without checking on the claims.

    If OTB is such a horrible place, why do you come around here? Beat it.

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  25. Kit says:

    @Jax:

    I always imagine people like Paul L…

    I see him as someone reading every article posted, biding his time, waiting for the latest OTB argument to reach its full fantasy, and then deciding to unleash The Zinger, those few judicious words that bring the whole house of cards crashing down. ZAP! A weaker man might gloat, but Paul, out of the generosity born of the knowledge that he’s holding an unbeatable hand, contents himself with a sardonic smile before hitting Post.

    Like Wile E. Coyote (but without the intelligence or imagination), his latest never fails to blow up around him. But next time, next time the smug commentariat will sputter in impotent rage as he unmasks them for the gullible fools that they are.

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  26. Jesse B says:

    Wow you guys and gals are something special. Fair trial? The house wouldn’t even let anyone who had any form of question or opinion say anything. And you guys are saying it was fair and honest?
    I actually watched a lot of it and it was just sickening then laughable then sickening again. They have nothing, nothing. Well except a burning hatred if Trump.

    McConnell knows there’s not going to be anything happening and that the president will not be convicted because there legitimately is nothing he did wrong.

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  27. Michael Reynolds says:

    @Jesse B:
    The committee conducted itself impeccably, the proceedings were entirely fair, and you’re either uninformed or dishonest, your choice.

    @Guarneri:
    Gee, what a surprise, I give you an opening to explain yourself and: squeak!

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  28. Michael Reynolds says:

    @Jesse B: @Guarneri:
    As a reminder to culties:

    1) Trump was asked to have his representative be part of the judiciary committee hearings: he refused.

    2) Trump had every opportunity to present evidence related to this case. He refused. Instead he tried to distract us by obsessing over the Bidens, who have no bearing on this case.

    3) Trump has refused to allow anyone to testify on his behalf. The reason is obvious: there is no defense becuase Trump is obviously guilty, anyone ‘defending’ him would commit perjury, digging Trump’s hole deeper.

    4) Innocent people do not obstruct justice.

    Trump is guilty and you know it. He’s corrupt and you know it. He’s a traitor and you know it.

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  29. Jax says:

    @Jesse B: I’m not sure which part of the hearings you watched, but every time I tuned in, Republicans were granted as much time to ask questions of the witnesses as Democrats. They even got to call witnesses, so I don’t know what you’re whining about.

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  30. Teve says:

    @Jax: there’s been a strange burst of idiot trolls lately.

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  31. Jax says:

    @Teve: I’ve noticed that. Not sure which dark corner of the internet they crawled out of, but they can slither back into it anytime.

    I’ve just been thankful to not have to read ol Crissy. Small blessings. 😉

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  32. Guarneri says:
  33. Kurtz says:

    @Guarneri:

    ZeroHedge: The place where every byline is Tyler Durden; written by people who only saw the movie.

  34. Mikey says:

    @Guarneri: Zerohedge is a Russian propaganda outlet.

    But I’m sure for you that’s a feature, not a bug.

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