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An Update on Impeachment and the Looming Senate Trial

01/06/2020

The House of Representatives handled the impeachment of President Donald Trump in an unprecedented way, one that makes a mockery of the process and delegitimizes it as a constitutional remedy. Unfortunately, this partisan charade has continued even after the House approved both articles of impeachment.

Before the Christmas recess, Speaker Nancy Pelosi (D-Calif.) said that she was holding the House-passed articles of impeachment, H.Res. 755, and the appointment of impeachment managers for the impeachment trial in the Senate until a fair trial was guaranteed, and it could still be a couple of weeks before a decision is made. The impeachment managers must be approved by the House through a resolution.

The appointment of impeachment managers, who prosecute the impeachment in the Senate, is an important step in the process, as explained in the chapter in Riddick’s Senate Procedure on the impeachment trial. The rules governing the impeachment trial do not allow the Senate to begin the trial until the impeachment managers have been named and the articles have been presented on the Senate floor.

Although there may be several political reasons for her decision, such as the 2020 presidential election, Speaker Pelosi has indicated that she is delaying the appointment of impeachment managers primarily because of comments made by Senate Majority Leader Mitch McConnell (R-Ky.), who said that he’s coordinating with the White House on the impeachment trial. Although McConnell has indicated that these discussions are purely logistical -- attempting to reach a consensus on a timetable and other procedures for an unprecedented trial -- Speaker Pelosi has made it clear that she will hold the articles hostage until the Senate agrees upon the rules for the trial.

In a floor speech on Friday, McConnell said, “The structure for this impeachment trial should track with the structure of the Clinton trial.” This means two phases, he noted. “First, in 1999 the Senate passed a unanimous bipartisan resolution – 100 to nothing – that set up the initial logistics like briefs, opening arguments, and Senator questions. It stayed silent on mid-trial questions such as witnesses until the trial was actually underway.” The resolution McConnell referenced was S.Res. 16, which passed unanimously on January 8, 1999. This was the first phase in the Clinton impeachment trial. The second phase was S.Res. 30, which was passed on January 28, 1999. This resolution established the rules around depositions for witnesses.

Senate Minority Leader Chuck Schumer (D-N.Y.) has demanded that acting White House Chief of Staff Mick Mulvaney and former national security adviser John Bolton, among others, testify in the Senate trial. Bolton has said recently that he is willing to testify during the trial if he is subpoenaed. Schumer has also used a story from The New York Times describing that senior officials knew the aid to Ukraine was being held and emails obtained by Just Security that further document the withholding of the aid to pressure McConnell into a thorough trial.

It is worth noting that only three witnesses were allowed during Clinton’s impeachment trial: Sidney Blumenthal, Monica Lewinsky, and Vernon Jordan. The depositions from the three witnesses were recorded, as required by S.Res. 30, which was passed on January 28, 1999. Only video excerpts of the testimony were shown during the impeachment trial; meaning the witnesses themselves were deposed in a private setting, although they were recorded, and were not questioned by the whole of the Senate.

Sen. Susan Collins (R-Maine) has said that she’s “open to witnesses” testifying during the trial and called McConnell’s comments about coordination “inappropriate.” Sen. Lisa Murkowski (R-Alaska) said that she was “disturbed” by McConnell’s comments. Collins and Murkowski, as well as Sen. Mitt Romney (R-Utah), are thought to be the Republicans who are most likely to vote for conviction.

McConnell is, however, right that the impeachment trial in the Senate is a political process. It is absurd to think that President Bill Clinton and the White House did not coordinate with then-Senate Minority Leader Tom Daschle (D-S.D.) and Democrats before and during the impeachment trial in January and February 1999.

Collins should know this too well, considering it was Clinton who coordinated with Sen. Tom Harkin (D-Iowa) to stop a “findings of fact” resolution. Requiring only a simple majority, the resolution would have declared Clinton guilty of the crimes in the articles of impeachment but wouldn’t result in conviction and removal from office. More on this can be found in chapter 17 of Peter Baker’s book, The Breach: Inside the Impeachment and Trial of William Jefferson Clinton, which is essential reading.

As we have noted before, the Senate has no choice but to begin the trial when the House appoints the impeachment managers and Senate’s rules for impeachment do not allow for a motion to dismiss. A motion to dismiss has to be included in a supplemental resolution to the rules governing impeachment in the Senate, which do not allow for such a motion. This was the case during Clinton’s impeachment trial. The supplemental rules, S.Res. 16, allowed for a motion to dismiss after the conclusion of the question of impeachment managers and Clinton’s counsel and before a motion to subpoena witnesses.

The motion to dismiss, made by Sen. Robert Byrd (D-W.Va.), failed. If McConnell and Schumer can’t come to an agreement on supplemental rules for the conduct of the trial, no such motion may be entertained. Still, Sen. Josh Hawley (R-Mo.) plans to introduce a resolution later today to dismiss the articles of impeachment. No other details on the resolution have been provided. Separately, Sen. Lindsey Graham (R-S.C.) has opened the door to amending the Senate’s impeachment rules to allow for the chamber to conduct the trial even if Pelosi doesn’t transmit the articles of impeachment.

In the middle of all of this, House Intelligence Committee Chairman Adam Schiff (D-Calif.) suggested that a third article of impeachment is possible but highly unlikely. Additionally, the general counsel for the House, Douglas Letter, mentioned in a court filing with the U.S. Circuit Court of Appeals for the District of Columbia Circuit that President Trump could be impeached a second time. This filing comes in the lawsuit filed by former White House counsel, Don McGahn, who declined to testify during the House impeachment inquiry. If the House wins the lawsuit, McGahn may be forced to testify. Information obtained from his testimony could be used in another impeachment proceeding.

As of now, though, Pelosi has to more forward on sending the articles of impeachment to the Senate and present the impeachment managers for approval to the House. When it comes to the Senate, barring a breakthrough between McConnell and Schumer, it appears that the unprecedented way in which this impeachment has been handled in the House will carry over into the Senate.