The Devil Is In The White House, But He's Also In The Impeachment Trial Rules

SALON.COM

Do you have the feeling that nearly a month after House Democrats announced they were starting a formal impeachment inquiry that things may be going a little too well?  I speak specifically of Majority Leader Mitch McConnell's seeming acquiescence to the inevitability of a Senate trial on House-approved articles of impeachment.   

McConnell called together Senate Republicans last week, showed them a PowerPoint presentation replete with quotes from the Constitution and said they should be ready for an impeachment trial of President Trump, possibly working six days a week as early as Thanksgiving and possibly wrapping up a trial by Christmas.  This seemingly was a capitulation to reality as House Democratic-led committees continue to step up the pace in taking testimony underpinning the impeachment articles that would be voted out -- a sure thing since Democrats control the House -- and sent on to the Republican-controlled Senate, where convicting Trump after a trial is a sure thing of another kind -- as in a non-starter -- even as cracks appear in the facade of support for the beleaguered president amidst damning Ukraine scandal revelations.   

In McConnell's greasy hands, reality isn't necessarily reality, just as "truth isn't truth" by the twisted reckoning of Rudy Giuliani, the president's personal lawyer, fixer and Ukraine scandal bogeyman.   In fact, McConnell's warning to his caucus could be a big, fat misdirection play because Senate rules afford he and his fellow Republicans ample opportunity to not just derail a trial, but to turn the proceedings into a sham. 

An impeachment trial would be governed by the Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials.  These rules dictate the finer points of a trial with great specificity.  They note, for example, that as soon as House impeachment articles are "presented to the Senate, the Senate shall, at 1 o’clock [on the] afternoon of the day (Sunday excepted) following such presentation, or sooner if ordered, by the Senate, proceed to the consideration of such articles." 

The rules further cite the precise proclamation the sergeant at arms must make once House manager of the impeachment appear in the Senate to present the articles of impeachment and note how the chief justice of the Supreme Court must be told that he or she is to preside over a presidential impeachment and how an impeached official must be notified of his or her impeachment. 

But as David Corn warns at Mother Jones, the possibilities available to Republicans for jiggering the system are considerable:  

During a trial, [the rules] say, the Senate can "make all lawful orders, rules, and regulations which it may deem essential or conducive to the ends of justice." This reads like a blank check for mischief.  A Senate majority possibly could vote to limit testimony or witnesses.  Perhaps it could impose a time limit on the proceedings that would prevent a full airing of the case against Trump. 

But isn’t the chief justice in charge? (Put aside the question of his possible bias for a moment.)  The rules say he is, but on some matters he can be trumped by the party in control.  They state that the chief justice "may rule on all questions of evidence including, but not limited to questions of relevancy, materiality, and redundancy of evidence and incidental questions, which ruling shall stand as the judgment of the Senate, unless some Member of the Senate shall ask that a formal vote be taken thereon, in which case it shall be submitted to the Senate for decision without debate." (Emphasis added.)   

So if there is a debate over the introduction of a certain piece of evidence—say, Trump's legal team raises an objection—the chief justice decides.  Unless the Senate Republicans vote to overturn his ruling.  The final say will go to the GOP. 

The rules also allow the Republicans to keep much -- or even all -- of the proceedings out of the public eye. 

Either the chief justice or a majority of the Senate can order that a committee of senators be established to "receive evidence and take testimony at such times and places as the committee may determine," even behind closed doors.  In other words, the entire trial, including the senators' deliberations after testimony is heard, could be conducted in secrecy. 

It gets worse.   

The presiding judge would be Chief Justice John Roberts, who even in these hyper-partisan times remains a strict constitutionalist who presumably would go by the book. 

But as Corn further notes:

[T]he Senate rules essentially give the Senate the ability to reject key rulings of the presiding judge.  McConnell is renowned for his wily mastering of Senate rules -- and for his willingness to bust norms for political gain.  (See Merrick Garland.)  Though he has recognized the duty of the Senate to address -- and not ignore -- articles of impeachment, he may well have a trick or two in mind about how to conduct the trial -- especially if he is bent on disposing of this controversy in a fast manner during holiday season. 

The conventional wisdom, which has taken repeated beatings over the three years of the Trump nightmare, is that McConnell sees the impeachment proceedings as necessary to protect a half a dozen or so moderates, that nearly extinct Republican subspecies, who face re-election next year and must show voters they are giving the impeachment charges a serious review. 

But McConnell's greatest mission is to protect the president, and it almost certainly is a fool's errand to hope that Senate Republicans set aside loyalty for patriotism in the service of a fair trial.  After all, the outcries from the GOP have been few and far between over Trump's latest outrage in awarding the huge Group of 7 summit next year to one of his struggling golf resorts before he reversed course, let alone his Syria troop withdrawal catastrophe and inevitable unraveling of all his lies surrounding the Ukraine scandal. 

McConnell's entire political career is shot through with the kind of partisan shenanigans that would indeed turn an impeachment trial into a sham.  Sadly, America should expect nothing less.