Will Senate Republicans Allow a Real Trial?

His Orange Majesty has decided the Senate may go ahead and hold an impeachment trial, as long as they keep it short and he can call whatever witnesses he wants.

At WaPo, Seung Min Kim and Josh Dawsey report,

A group of Republican senators and senior White House officials met privately Thursday to map out a strategy for a potential impeachment trial of President Trump, including rapid proceedings in the Senate that could be limited to about two weeks, according to multiple officials familiar with the talks.

The prospect of an abbreviated trial is viewed by several Senate Republicans as a favorable middle ground — substantial enough to give the proceedings credence without risking greater damage to Trump by dragging on too long.

That’s a “middle ground”? What’s it in the middle of?

Even a two-week trial could run counter to what Trump has expressed privately. The president is “miserable” about the impeachment inquiry and has pushed to dismiss the proceedings right away, according to people familiar with his sentiments, who spoke on the condition of anonymity to discuss Trump’s views.

But a president has absolutely no authority over his own impeachment and trial. His views are irrelevant.

Other options, including a longer trial, were also discussed and still could happen, officials said. Ultimately, Trump will make the final call on trial strategy, a senior administration official said.

Let’s review the Constitution, Article I, Section 3, paragraph 6:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Seems to me this is saying Chief Justice Roberts is the one who will decide how long the trial will last. Bill Clinton’s trial lasted five weeks, btw.

Hogan Gidley, a White House spokesman, said on Fox News on Thursday evening that if the House does impeach Trump, then the president would want proceedings to unfold in the Senate.

That’s big of him.

“He wants to be able to bring up witnesses like Adam Schiff, like the whistleblower, like Hunter Biden, like Joe Biden,” Gidley said. “And he says if the House moves forward with this sham and they continue to push these fake illegitimate proceedings on the American people, then he wants it to go to the Senate, and he wants a trial.”

Seems to me it’s up to the Chief Justice to decide what witnesses are allowed to testify. And of course there will be a trial. The Constitution says so.

Senate Republicans have been divided on how long a Senate trial should be. Some align with Trump’s view, seeking to dismiss it as soon as possible, while others have sought a middle-of-the-road option like two weeks.

Still others have toyed with a more drawn-out trial that has the potential to scramble the schedules of a half-dozen Democratic senators who are running for president but would be jurors in an impeachment trial.

You can see what their priorities are.

Granted, it’s possible Roberts will go along with what the Republicans want. But I think it is also possible he will be sensitive to charges that favoritism shown to Republicans will make him, and his court, illegitimate.

Bruce Ackerman writes at Slate (emphasis added):

The Constitution explicitly states that the chief justice, in this case John Roberts, “shall preside” over presidential impeachment trials. The rules of the Senate, moreover, require McConnell to take this command seriously. In order to prevent the vice president, who formally presides over the Senate, from refusing to allow the chief justice to play his constitutional role, the Senate rules governing impeachment require the vice president to swear in the chief justice immediately after the House’s charges are announced on the floor. The rules then explicitly empower the chief justice to “direct all the forms of proceedings” during the trial. The Senate, in contrast, is granted the “power to enforce obedience” to all these rulings.

This separation of powers between the chief justice and the Senate was at the center of public attention as the country prepared itself for the impeachment trial of President Andrew Johnson, which began on March 4, 1868. At that time, the Senate approved the rules that were later codified and remain in force today. As the New York Times reported on March 3, 1868, Sen. George Williams of Oregon argued “that the intention of the Constitution was to empower the Chief Justice to decide questions … as he would in any court as its presiding officer. To do otherwise would be to act with a sort of jealousy and make him a sort of figure head.” Sen. John Sherman of Ohio agreed that “the usage of all bodies [is] to submit such questions to the presiding officer.”

Plot all they like; assuming Senate Republicans choose to follow the rules, they don’t get to decide how long the trial lasts and what evidence may be presented. However, will they follow the rules?

The current rules are not written in stone. The existing Senate could change them before the trial begins. But it is unlikely, to say the least, that McConnell could gain the majority support required for a revision. Because all Democrats would oppose this move, only three Republican defections would stop the majority leader in his tracks. From his public statements, it’s already clear that Sen. Mitt Romney would never go along. Similarly, Sen. Susan Collins has already said that senators should refuse to voice any opinions on the current battle between the House and the president “since they will be jurors” during the trial. On Friday, Sen. Lisa Murkowski also expressed disapproval of some of the president’s reported actions. Given these positions, it is implausible to suppose that these three senators would support any rule change that, in Williams’ words, would make the chief justice into a “figurehead” for blatant partisan politics.

One never knows about Collins, of course.

Given his deep commitment to professionalism, John Roberts can be counted on to deflect any behind-the-scenes pressures for speed. These inclinations would be reinforced, moreover, by the recent controversy surrounding the appointment of Brett Kavanaugh. Everybody remembers McConnell ramming the nomination through without a full investigation of multiple allegations of misconduct; Roberts cannot allow the same hardball tactics to repeat themselves. Moreover, the reconstituted Roberts court is giving every indication that it will be beginning an assault this term on Roe v. Wade and other fundamental precedents of the past half-century. Given the heated controversies that will be generated by these decisions, the chief justice will be even more reluctant to waste his political capital by enabling a partisan rush to judgment on Trump.

Well, that’s sort of reassuring.

We might also remember that the question of whether Trump can continue to ignore subpoenas for his financial records and tax returns is now in front of SCOTUS. The justices could decide this any time now.  It’s likely we’ll get a decision before the impeachment trial begins, or even before the House votes on articles of impeachment. .

Speaking of subpoenas — some big shots not heard from formally include Mike Pence, Mike Pompeo, Mick Mulvaney, John Bolton, Rick Perry, and Rudy Giuliani. The House Dems say they aren’t going to bother issuing subpoenas that will be ignored. Going through courts to get the subpoenas honored could take months.

“They should be coming before us,” Speaker Nancy Pelosi said on Thursday. “They keep taking it to court, and no, we’re not going to wait until the courts decide. That might be information that’s available to the Senate, in terms of how far we go and when we go. But we can’t wait for that because, again, it’s a technique. It’s obstruction of justice, obstruction of Congress.”

“That might be information that’s available to the Senate, in terms of how far we go and when we go.” See this post at Talking Points Memo, in which a former federal prosecutor explains that under Senate rules, subpoenas for testimony or documents could be compelled to be honored by the Chief Justice very quickly. It is possible these people will be ordered to testify in the Senate trial.

It’s also possible that if Trump’s taxes are released, Trump will decide he has to make a foreign trip and not come back.

There are a lot of ifs here. A lot hinges on John Roberts. Fingers crossed.

(Credit: www.dailykos.com)

14 thoughts on “Will Senate Republicans Allow a Real Trial?

  1. If Trump can call Hunter Biden and compel him to testify then Mick and Rudy and Sir Bolton and Rick Perry can also be called. If the Senate allows them to thumb their nose at the impeachment, Hunter should also refuse to testify. The Democrats would go first – they are prosecuting. So the decision to require witnesses or not will be adjudicated by  Roberts before Trump gets a turn at bat. The trial will be televised so Trump has to make it a good show. He will want to exonerate Russia and indict Ukraine for election meddling and refute the Mueller report as long as there's an audience.

    In regular court proceedings, the witness lists are submitted ahead of time. The judge may rule that the testimony of a person isn't relevant. Example: I was charged with aviation-related felonies and could not have called experts on big money in politics even though that's why I made the flight. I also couldn't make a First Amendment defense. This would seem to be especially true if the time of the trial is limited – extraneous testimony eats the limited time for relevant testimony.  

    My intuition is that Roberts will NOT allow this to become a TV-event directed by Donald Trump. If Roberts is sitting at the bench, even in the Senate, he won't let history decide he was the ringmaster of the circus. Again, just opinion, Roberts will try not to intrude on McConnell's authority, but if in Robert's opinion the rules are HIS TO MAKE, he will not let Moscow Mitch determine a formula which gives Trump the theatre he craves.

  2. If they wanted to, the easiest way for Roberts and McConnell to get rid of tRUMP without much fuss and bother, would be for Roberts to be the 5th vote in the tRUMP tax case, and say to "RELEASE THE KRAKEN'S TAXES!!!" 


    This could allow Roberts and his SCOTUS to save its reputation.

    And not have McConnell expose vulnerable Senators for: 

    1.  Being primaried.

    2.  A vote on impeachment – either way – would be sure to anger either the right or the left in their state – possibly causing the R's to lose the election via lower turnout, or to the D's due to higher turnout!

    Let "We the People" decide!!!!!

    There's a possibility that when people find out about how much tRUMP lied when he said he was a billionaire many times over, and find out that he's a broke grifter who's in hock to a lot of people – among others, Russia – they may yell and storm the barricades (not really, of course) for impeachment!*

    Public opinion after the tax release can make impeachment easier, faster, and less politically perilous!

    And no, I did not drink any alcohol or take any illegal pharmaceuticals before writing this comment!  (But this idea might be from some "dain bramage" I suffered from taking the above – and several sports-related head trauma's, as well:-)

    * Not including tRUMP's MAGAts, of course!!!?

  3. The wisest course of action is for the House is to load Trump up with articles of impeachment for every offense he's committed. Basically the Truth. If an acquittal is a foregone conclusion, so be it. The important thing is that history record the events so that the truth will ultimately win out as it always does. 

    Every Senator will cement his or her legacy if they decide to cover for Trump rather than honor their oath to the Constitution and the American people.

    Trump is corrupt, and any Senator who doesn't acknowledge that corruption will be confirming their own corruption. It's no longer a case of whether or not Trump has done what he will be accused of. It's now the case of what the American people will do about it.

    Pop quiz… Off the top of your head. What do you know about President Andrew Johnson?

    What will our grandchildren know about Donald Trump?

  4. Off the top of your head. What do you know about President Andrew Johnson?

    I actually read a biography of him a long time ago. He was about as worthlss as Trump. 

    • You might be the exception in knowing anything about Andrew Johnson, but to most people the name Andrew Johnson is basically a synonym for the word impeachment. May Trump enjoy that same distinction.

      My knowledge of him is quite extensive..I know that he came after Lincoln, and he was impeached.

       I'm looking forward to Trump getting impeached.. A big beautiful impeachment, the likes of which to world has never seen before.

    • BTW, the GOP makes a lot of noise about if House democrats vote to impeach in the House, it will be a partisan vote and therefore illegitimate.  And yet, the republicans have been poised to acquit Trump, even before impeachment has been decided one way or the other.  But that's not partisan?

  5. In 1974, (Nixon was impeached in late '73.) Democrats gained four seats in the Senate and forty-nine seats in the House. Republicans are desperate to minimize damage, not because they would consider removing Trump, but because election results will be defined by the public perception of the trial.

    Trump will demand (and get) control of his defense – bat-shit loyalists (Ms. Graham?) will be in charge. (I'm curious who will lead the prosecution in the Senate.) As Maha said, Roberts is not likely to be a pliant toady for Trump or his merry band of sycophants. Trump will have a fit when Roberts tells the defense that he (Roberts) makes the rules and if anyone doesn't like it, read the Constitution. 

    The dynamic isn't whether Trump will be removed. (he won't.) The crisis is one of perception in the jury that US voters are less than a year after proceedings in the Senate conclude.

  6. Frank Rich – Republicans are Excusing a Criminal Conspiracy

    …Had Trump pulled out that (so far) proverbial gun and shot someone on Fifth Avenue, Republicans would trot out the exact same defense they have this week [at the impeachment hearings]: The shot was fired at 2 a.m. and there were no eyewitnesses. Those nearby who claimed to have heard the shot had actually heard a car backfiring. The closed-circuit video capturing the incident is, as the president says, a hoax concocted by the same Fake News outlets that manufactured the Access Hollywood video. The confession released by the White House was “perfect” evidence of Trump’s innocence….

    Sascha Baron Cohen receives the Anti-Defamation League Int’l Leadership Award

    …what the hell is a comedian doing speaking at a conference like this! …I’ve spent most of the past two decades in character….

    …Today around the world, demagogues appeal to our worst instincts. Conspiracy theories once confined to the fringe are going mainstream. It’s as if the Age of Reason—the era of evidential argument—is ending, and now knowledge is delegitimized and scientific consensus is dismissed. Democracy, which depends on shared truths, is in retreat, and autocracy, which depends on shared lies, is on the march. Hate crimes are surging, as are murderous attacks on religious and ethnic minorities.

    What do all these dangerous trends have in common? I’m just a comedian and an actor, not a scholar. But one thing is pretty clear to me. All this hate and violence is being facilitated by a handful of internet companies that amount to the greatest propaganda machine in history.

    The greatest propaganda machine in history.

    Think about it. Facebook, YouTube and Google, Twitter and others—they reach billions of people….

    transcript here

  7. I'm not fully aware of how the impeachment process unfolds, but I assume that before the articles of impeachment are voted on in the House there will be a time for each representative to present an argument in favor or opposed to impeachment.

    I've heard some pretty persuasive and powerful arguments coming from those who have voiced the necessity to hold Trump to account. I hope that during that phase of the process that the needle gets moved toward impeachment with the removal from office of Trump. I'm also hoping that the issue is articulated so that the damage Trump is doing to the foundations of our democracy is clearly understood and there is no mistaking what the price to our nation will be if Trump is allowed to spread his corruption further than he has thus far.

    Evidently Trump can't or won't be reined in, so it's become imperative that he's given the boot.

     Another thought I hold on to is the fact that Senators are required to affirm an oath before they begin the trial in the Senate. My hope is that the seriousness of the situation and the overwhelming evidence presented will cause them to honor their oath and bear true faith and allegiance to the Constitution. I'm sure they will have a lot of latitude with some of the articles, but Trump's bribery attempt is irrefutable.

     Give him the boot…He's a New York shakedown artist. Send that bag of shit packin'!

  8. We don't really know for sure there will be a trial in the Senate. What we do know is that Republicans are already doing everything they can to muddy the story and attack anyone who has been a Democrat since the late 20th century. They're narrowing their talking points and repeating them wherever and whenever they get a chance.

    Rank and file Trumpers probably like him even more for selling us out to the Russians. At least the Russians are white, unlike the Chinese who Bill Clinton granted Most Favored Nation trade status and are assumed to have authored the curse "May you live in interesting times".


  9. I have little hope for removal. But I totally believe impeachment is required.

    All the BS about how Watergate hurt the country is Bullshit. Now we have 2 generations that don't know or care.

    It is not okay to use taxpayer money appropriated by Congress to further one's campaign. It is not okay to keep making rationalizations for setting precedent s for authoritarianism. It's not okay to approve of bad behavior that plays into Putin's hands.

    The republicans are afraid of Trump's voters. The deplorables need to be told " get over it ". Next time anything happens bad they need to be blamed. They are the ones who are rationalizing everything he and his minions do.

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