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, and report,
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.
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.
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.