Tuesday Reads: Senate Impeachment “Trial” Begins

Chief Justice John Roberts presides over the impeachment trial of Donald J. Trump.

Good Morning!!

The Senate impeachment “trial” begins this afternoon, and Mitch McConnell is doing his damnedest to make sure it won’t be a real or fair one. Awhile back, McConnell said this trial would follow the rules set for Bill Clinton’s impeachment, but–surprise!–that was just one big fat lie.

Nicholas Fandos at The New York Times: McConnell Impeachment Rules Modify Clinton Precedent.

But when Mr. McConnell, Republican of Kentucky and the majority leader, finally released a draft of his resolution on Monday evening, less than 24 hours before the Senate was expected to consider it, there were several meaningful differences from the rules that governed Mr. Clinton’s impeachment, some of which were in line with Mr. Trump’s preferences and his legal team’s strategy.

The measure is expected to pass on Tuesday along party lines, over strenuous Democratic objections….

Mitch McConnell and pals

Like in the Clinton trial, the Democratic House impeachment managers and Mr. Trump’s defense lawyers will have up to 24 hours to argue their respective cases for and against conviction on charges of abuse of power and obstruction of Congress. But in 1999, the Senate imposed no additional limit on how the time was used. Mr. McConnell’s proposal states that each side much complete its work within two days, beginning as early as Wednesday.

That means opening arguments could be finished by the end of this week, allowing the senators 16 hours for questioning and a subsequent debate early next week over whether to consider witness testimony. In the fastest possible scenario, the Senate could vote to convict or acquit by the end of January….

When the Clinton trial opened, the Senate “admitted into evidence,” printed and shared with senators all records generated by the House impeachment inquiry into Mr. Clinton. Not so this time.

Though the House’s evidence from the Trump impeachment inquiry would still be printed and shared with senators, it would only be formally considered by the Senate as part of its official record if a majority of senators voted to do so. That vote could only take place after the Senate decided whether to call witnesses and seek additional documents — that is, as the trial moves toward conclusion.

So it’s already looking like a kangaroo court, which surprises no one. McConnell’s rules also don’t guarantee there will be new witnesses or documents.

It says that after senators conclude their questioning, they will not immediately entertain motions to call individual witnesses or documents. Instead, they will decide first whether they want to consider new evidence at all. Only if a majority of senators agree to do so will the managers and prosecutors be allowed to propose and argue for specific witnesses or documents, each of which would then be subject to an additional vote.

If a majority of the Senate ultimately did vote to call a witness for testimony, that witness would first be interviewed behind closed doors and then the “Senate shall decide after deposition which witnesses shall testify, pursuant to the impeachment rules,” if any. Consistent with the Clinton trial rules, this essentially means that even if witnesses are called, they might never testify in public.

Naturally Democrats are not going to take this lying down. The House impeachment managers are holding a press conference right now and Chuck Schumer has already stated his objections. He told NPR this morning that McConnell’s rules are “a national disgrace” and told MSNBC that “Everything in these rules is rigged.” Right now Jerry Nadler is saying that McConnell’s rules amount to an obvious cover-up.

The White House is doing it’s best to make sure the “trial” will be a complete joke. The Hill reports on the Republican impeachment “advisers”:

The White House announced Monday that President Trump appointed several prominent Republican House members to advise his impeachment defense team ahead of the Senate trial set to begin this week.

GOP Reps. Jim Jordan (Ohio), John Ratcliffe Texas), Mike Johnson (La.), Mark Meadows (N.C.), Debbie Lesko (Ariz.), Lee Zeldin (N.Y.), Elise Stefanik (N.Y.) and Doug Collins are set to play leading roles.

A statement from the White House said the lawmakers “have provided guidance to the White House team, which was prohibited from participating in the proceedings concocted by Democrats in the House of Representatives” throughout the House proceedings and would continue to do so in the Senate.

You’ll notice that those are the Reps who tried to turn the House impeachment process into a shriekfest. According to the Hill, Democrats and even even some GOP Senators didn’t like the idea of House members getting involved in the Senate process.

Key Republican allies in the Senate have also warned against such appointments, warning that the addition of Republican House members would cast the Senate trial in a partisan light.

“I don’t think it’s wise. I think we need to elevate the argument beyond body politics, beyond party politics and talk about the constitutional problems with these two articles,” Sen. Lindsey Graham (R-S.C.) told reporters earlier this month.

I wonder if McConnell is at all worried about what the public reaction could be to a show trial. The latest CNN poll found that 51 percent of Americans think Trump should be removed from office and 69 percent believe that the Senate trial should include witnesses.

The poll is the first major national telephone poll since the articles of impeachment were sent to the Senate, formally launching Trump’s trial there. They are also the first such poll results since Soviet-born businessman Lev Parnas, an associate of Trump’s attorney Rudy Giuliani, publicly implicated the President in the Ukrainian pressure campaign during a series of television interviews.

The new poll also finds majorities of Americans view each of the charges on which Trump will face trial as true: 58% say Trump abused the power of the presidency to obtain an improper personal political benefit and 57% say it is true that he obstructed the House of Representatives in its impeachment inquiry.

Of course there are partisan, gender, race, age, and geographical differences in attitudes toward the trial:

Overall, 89% of Democrats say he should be removed from office, while just 8% of Republicans feel the same way. Among independents, it’s nearly dead even: 48% say the Senate should vote to remove him, while 46% say that they should not. Views on whether Trump should be impeached and removed are also evenly split across battleground states, 49% are on each side across the 15 states decided by 8 points or less in 2016. Those states are Arizona, Colorado, Florida, Georgia, Maine, Michigan, Minnesota, Nevada, New Hampshire, North Carolina, New Mexico, Ohio, Pennsylvania, Virginia and Wisconsin.

House impeachment managers take articles of impeachment to Senate.

Beyond partisanship, there are wide divisions in the poll by gender, race, education and age. Nearly six in 10 women (59%) say the Senate should remove Trump from office; 42% of men agree. Among African Americans, 86% say Trump should be removed. That drops to 65% among Hispanics and 42% among whites.

Combining race and gender, about eight in 10 women of color (79%) say he should be removed. That dips to 59% among non-white men, 49% among white women and 33% among white men. For whites, education adds another degree of division: 59% of white women with college degrees say the Senate should remove Trump, compared with 43% among white women without degrees, 44% among white men with degrees and 27% among white men without college degrees. A majority (56%) of those under age 45 say the President should be removed, while older Americans are more evenly split (47% in favor among those age 45 and over, 50% opposed).

This from Politico is shocking, but not surprising: Justice Department backed Trump strongarm of House impeachment probe.

The Justice Department secretly blessed President Donald Trump’s decision to stonewall the Democratic-led House over impeachment last year, the president’s legal team disclosed Monday.

The legal brief submitted to the Senate as part of Trump’s defense includes an opinion from the Department of Justice’s Office of Legal Counsel concluding that Trump was justified in categorically rejecting the House’s demands for information before lawmakers passed a formal impeachment resolution on October 31.

“We conclude that the House must expressly authorize a committee to conduct an impeachment investigation and to use compulsory process in that investigation before the committee may compel the production of documents or testimony in support of the House’s sole power of impeachment,” Assistant Attorney General Steven Engel wrote in the detailed legal rationale.

The opinion was officially dated Sunday and released by the Justice Department on its website Monday, timing that appeared to dovetail with a Senate-set noon, holiday deadline for Trump’s first substantive brief in the impeachment trial.

Chuck Schumer is giving a press conference right now. He is emphasizing that McConnell is trying to make sure that Americans don’t watch the trial because it will begin in the afternoon and last late into the night and early morning hours. There will be a battle between Democrats and Republicans in the Senate today, but so far it appears that McConnell has to votes to pass his ridiculous rules.

The White House is also trying to make sure the American people don’t hear from John Bolton. The Washington Post: Trump’s lawyers, Senate GOP allies work privately to ensure Bolton does not testify publicly.

President Trump’s legal defense team and Senate GOP allies are quietly gaming out contingency plans should Democrats win enough votes to force witnesses to testify in the impeachment trial, including an effort to keep former national security adviser John Bolton from the spotlight, according to multiple officials familiar with the discussions.

While Republicans continue to express confidence that Democrats will fail to persuade four GOP lawmakers to break ranks with Senate Majority Leader Mitch McConnell (R-Ky.), who has opposed calling any witnesses in the trial, they are readying a Plan B just in case — underscoring how uncertain they are about prevailing in a showdown over witnesses and Bolton’s possible testimony.

One option being discussed, according to a senior administration official, would be to move Bolton’s testimony to a classified setting because of national security concerns, ensuring that it is not public.

To receive the testimony in a classified session, Trump’s attorneys would have to request such a step, according to one official, adding that it would probably need the apReaproval of 51 senators.

Read the rest at the WaPo.

Here are a couple of good articles analyzing Trump’s impeachment defense.

From Charlie Savage at The New York Times: ‘Constitutional Nonsense’: Trump’s Impeachment Defense Defies Legal Consensus.

As President Trump’s impeachment trial opens, his lawyers have increasingly emphasized a striking argument: Even if he did abuse his powers in an attempt to bully Ukraine into interfering in the 2020 election on his behalf, it would not matter because the House never accused him of committing an ordinary crime.

Their argument is widely disputed. It cuts against the consensus among scholars that impeachment exists to remove officials who abuse power. The phrase “high crimes and misdemeanors” means a serious violation of public trust that need not also be an ordinary crime, said Frank O. Bowman III, a University of Missouri law professor and the author of a recent book on the topic.

“This argument is constitutional nonsense,” Mr. Bowman said. “The almost universal consensus — in Great Britain, in the colonies, in the American states between 1776 and 1787, at the Constitutional Convention and since — has been that criminal conduct is not required for impeachment.”

But the argument is politically convenient for Mr. Trump. For any moderate Republican senator who may not like what the facts already show about his campaign of pressure on Ukraine, the theory provides an alternative rationale to acquit the president.

Read the rest at the NYT.

More analysis from Quinta Jurecic and Benjamin Wittes at The Atlantic: Trump’s Impeachment Brief Is a Howl of Rage.

The House managers’ brief is an organized legal document. It starts with the law, the nature and purposes of Congress’s impeachment power, then walks through the evidence regarding the first article of impeachment, which alleges abuse of power, and seeks to show how the evidence establishes the House’s claim that President Trump is guilty of this offense. It then proceeds to argue that the offense requires his removal from office….

By contrast, the White House’s “Answer of President Donald J. Trump” to the articles of impeachment, filed by the president’s personal lawyer Jay Sekulow and the White House counsel, Pat Cipollone, does not read like a traditional legal argument at all. It begins with a series of rhetorical flourishes—all of them, to one degree or another, false. The articles of impeachment are “a dangerous attack on the right of the American people to freely choose their President,” the president’s lawyers write—as though the impeachment power were not a constitutional reality every bit as enshrined in the founding document as the quadrennial election of the president. The articles are “a brazen and unlawful attempt to overturn the results of the 2016 election and interfere with the 2020 election,” and are “constitutionally invalid on their face,” they write, as though the president’s right to extort foreign leaders for political services were so beyond reasonable question, it is outrageous that anyone might object to it.

This document reads like one of the president’s speeches at his campaign rallies. The language is a little more lawyerly, if only a little. In Sekulow and Cipollone’s hands, Trump’s cries of “Witch hunt!” have turned into “lawless process that violated basic due process and fundamental fairness.” His allegations that Democrats are a “disgrace” have turned into “an affront to the Constitution.” And Trump’s insistence that there’s a plot to destroy his presidency has become a “highly partisan and reckless obsession with impeaching the president [that] began the day he was inaugurated and continues to this day.”

But the message is unchanged. It’s not a legal argument. It’s a howl of rage.

Read more at The Atlantic.

I’ve tried to lay out the basics; we’ll soon be able to watch what happens in the Senate for ourselves. Please share your reactions as the day goes on, but feel free to post on other topics as well. It should be an interesting day!