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McConnell Says He Has Votes to Start Impeachment Trial Without Witnesses

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Although Speaker of the House Nancy Pelosi continues to withhold the articles of impeachment from the Senate with no indication of when she plans to transfer them to the Republican-controlled half of Congress, the outlines of how the trial will proceed are beginning to take shape as Senate Majority Leader Mitch McConnell has told Republican colleagues that he has the votes to begin the trial with no guarantee that witnesses will be called. Democrats believe that their case against the president is already ironclad, but that calling additional witnesses like former national security advisor John Bolton and White House Chief of Staff Mick Mulvaney will further bolster their case and convince the American public of the president’s wrongdoing.

Republicans, on the other hand, have not presented a defense of the president’s conduct on the merits of the case but instead have tried to shift attention to the president’s political rival Joe Biden and his son Hunter, alleging that the younger Biden’s conduct in Ukraine as a member of the board of an oil company constituted impropriety as his father was Vice President at the time. Accordingly, McConnell and Senate Republicans have announced their intention to work with the White House to ensure that the political damage the trial inflicts on Trump’s presidency is minimized. As such, Republicans are pushing for a rapid trial involving no witnesses and documents, consisting only of a presentation from the impeachment managers selected by the House and a defense from the president’s legal team followed by a vote which is all but certain to result in an acquittal, giving the president ammunition in his claim that he is being unfairly prosecuted by Democrats.

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McConnell has argued that the Senate trial should begin in accordance with the rules that governed the 1999 impeachment trial of Bill Clinton, which did not guarantee the presence of documents or witnesses but allowed senators to vote to call witnesses, who appeared virtually via videotape, as the trial proceeded. As Republicans hold a majority in the Senate and are fairly united in their opposition to the impeachment of Donald Trump, it is unlikely that they will decide during the trial to call witnesses like Bolton and Mulvaney who have firsthand knowledge of the scandal that led to the president’s impeachment, though they may push to call witnesses like Joe and Hunter Biden to testify about the unrelated, manufactured conspiracy theory that alleges without evidence misconduct on the part of Democrats.

If history is any indication, it’s only a matter of time before the full details of the administration’s conduct in connection with the scandal about Ukraine are revealed to all

Senate Minority Leader Chuck Schumer has accused McConnell and the Republicans of engaging in a cover-up by refusing to hear from Bolton and Mulvaney, among others, particularly given the magnitude of the evidence that has already been uncovered by House investigators despite the White House’s near-total obstruction, which has understandably raised additional questions about the administration’s response to the president’s request of Ukrainian President Zelensky for assistance in his domestic political campaign.

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Though the likelihood of the presence of witnesses at the president’s trial decreases by the day, John Bolton has complicated the process by saying he’d be willing to testify if he receives a subpoena from the Senate, despite his prior refusal to comply with a House subpoena on the basis of his claim that that his conflicting orders from Congress and the executive branch constituted a critical separation-of-powers issue that had to be resolved by the courts.

Political observers believe that Bolton’s announcement is not sincere, but instead strategic, as the former White House national security advisor is well within his rights to discuss what he knows about the president’s conduct in a public forum, and in fact may do so in a book that he is planning to sell. That being said, pundits disagree over the end-game of Bolton’s political strategy, which remains unclear to everyone except him and his legal team. In any event, if history is any indication, it’s only a matter of time before the full details of the administration’s conduct in connection with the scandal about Ukraine are revealed to all, whether or not witnesses are called during the forthcoming trial. 

The White House

Majority of Americans Believe Evidence Supports Removing Trump from Office, Poll Finds

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A poll conducted by Ipsos and FiveThirtyEight, an organization that aggregates and analyzes opinion poll data, has found that 52% of Americans believe enough evidence exists with respect to Trump’s conduct with Ukraine and his refusal to cooperate with Congress to warrant his removal from office. An aggregate of polls conducted to determine whether Americans support impeaching Trump has found that roughly half of Americans have supported the impeachment inquiry since Pelosi announced it, whereas the other half oppose impeachment. Though the impeachment inquiry lasted several weeks and produced devastating evidence directly implicating the president in withholding aid money to Ukraine in exchange for campaign assistance, these revelations have not changed Americans’ minds about impeachment, as poll results have remained remarkably consistent throughout the process. However, this most recent poll suggests that some Americans are slowly beginning to realize the extent of the president’s misconduct, though Trump’s remarkably steady approval rating indicates that it is unlikely that an overwhelming majority of Americans will ever support removing the president while he remains in office.

Although a majority of Americans (57%) believe Trump engaged in impeachable conduct, just 47% of Americans favor removing him from office, apparently believing that the question of whether Trump should remain the president should be determined by American voters this November. This means that roughly 15 percent of Americans believe that Trump committed impeachable conduct that warrants his removal from office but do not support removing the president before the election. Predictably, public opinion is split along party lines; 82% of Democrats support removing Trump from office, whereas only 9.7% of Republicans hold the same opinion.

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One thing that both Democrats and Republicans seem to agree on, however, is that the upcoming Senate trial should feature witnesses who were not present during the phase of the process controlled by the House in order to expand on the evidence unearthed over the past few months. 57% of Americans want to see a Senate trial with new witnesses, whereas 39% believe the focus should be kept on the evidence presented by the House. That being said, Democrats and Republicans largely disagree on who should be called as witnesses—Democrats think that officials like John Bolton and Mick Mulvaney, who have direct knowledge of the conduct for which the president was impeached, should participate in the trial, whereas Republicans want senators to question people like Hunter Biden, who is the subject of Trump’s allegation of his opponent’s political corruption. 

When it comes to how lawmakers are handling the impeachment process, which is currently in a stalemate as Nancy Pelosi continues to withhold the articles of impeachment from the Senate as leverage to negotiate the terms of the trial, Americans are almost evenly split on their approval of this tactic as well. Pelosi’s tactic may end up backfiring on Democrats, depending on how long she continues to withhold the articles, as withholding them for too long could give credibility to allegations that the impeachment process was motivated by political concerns instead of by constitutional obligation as the Democrats claim. 

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The poll also found that Americans are becoming increasingly unlikely to change their mind on the question of impeachment as time goes on. In mid-November, roughly 75% of respondents who believed Trump’s conduct was impeachable felt “absolutely” or “pretty” sure that they were right, whereas now 81 percent of respondents profess this degree of certainty. However, when it comes to Americans who think Trump’s conduct was not impeachable, this degree of certainty has not seen a similar increase, as 71% of this group reported being “absolutely” or “pretty” certain of their view in mid-November and 72% of this group reported being this certain in this latest poll.

Though the holiday season is officially over, the parameters of the Senate trial remain unclear, as lawmakers have made little progress in their negotiations over the rules of the trial. As such, at this unprecedented moment in history, it’s difficult to predict what, if any, effect the trial will have on public opinion, though trends over the past several years suggest any change will be minimal. 

Impeachment Trial

Should Senators Vote Secretly in Impeachment Trial?

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To say there exists little historical precedent for presidential impeachment trials would be an understatement. Before Trump, only two presidents, Andrew Johnson and Bill Clinton, have ever faced an impeachment trial in the Senate, and the circumstances in each trial were very different. During Johnson’s trial, for instance, 41 witnesses testified, whereas Clinton’s trial only featured a handful of witnesses. If Senate Republicans get their way, however, Trump’s trial will feature neither witnesses nor subpoenas for documents, and it will end quickly with an acquittal. The Constitution gives Congress the freedom to determine its own rules for how to handle impeachment trials; this fact, combined with the relative lack of historical precedent, makes it difficult for anyone to predict how the trial will proceed. That being said, the trial will likely be shaped in large part by partisan allegiance to the president, as several Republican senators have already said they’re not interested in acting as impartial jurors and Mitch McConnell has predicted a “largely partisan outcome.” Because hyperpartisanship threatens jurors’ impartiality, and thus the integrity of the trial, some political strategists have suggested that the senators should cast their ballot in secret, protecting them from the political ramifications of their vote and encouraging an independent decision.

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According to Juleanna Glover, a Republican strategist, it would be fairly easy for the Senate to ensure a secret ballot. Creating rules for the trial requires only a simple majority vote in the Senate; assuming Democrats vote in lockstep in favor of a secret ballot, only three Republicans would have to defect to reach the 51 votes necessary to effectuate the rule. Though they don’t publicly admit it for fear of the political repercussions, many Republican senators strongly oppose the president in private, according to various reports. In fact, former Republican senator Jeff Flake has said that he believes that there are at least 35 GOP senators who would vote to remove Trump if the votes were private; such a result would make Trump the first president in US history to be removed by the impeachment process. A secret ballot, however, would break with Senate tradition and expectations of transparency surrounding Senate proceedings, particularly in the extreme case of deciding whether to remove a sitting president from office. That being said, the atmosphere of hyperpartisanship, combined with an overall dislike of the president among lawmakers, may be enough to convince more than half of the Senate to institute such an unusual rule.

Few people predict that Trump will be removed from the White House before the 2020 election, but we live in an era in which unprecedented and unpredicted political events are borderline commonplace. 

While American politics has long been characterized by partisanship, the current political environment is arguably more partisan than ever before, with the vote in the House to impeach Trump passing almost entirely along party lines. The Senate is often considered to be a more impartial chamber than the House, but by most accounts it is still more partisan than it’s ever been. In Clinton’s trial, Republicans and Democrats collaborated to determine the rules, resulting in unanimous consent among all 100 senators—such an outcome is nearly inconceivable in today’s Senate. This very partisanship, though, is precisely what may motivate some senators to support a secret ballot. And while there exists a certain demand for transparency for actions taken by the Senate, grand jury proceedings, which the Senate trial will essentially function as, allow jurors to deliberate and vote in secret. 

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Already, cracks are starting to form in the Republicans’ solidarity in their support of Trump; Republican senator Lisa Murkowski, for instance, has said that she is “disturbed” by McConnell’s pledge to coordinate with the White House in defining the rules of the trial, and Mitt Romney has characterized the president’s conduct for which he was impeached as “troubling in the extreme.” A secret ballot, though admittedly unlikely, may be enough for these cracks to cause Republican senators’ defense of Trump to collapse, leading to his potential removal from office. Few people predict that Trump will be removed from the White House before the 2020 election, but we live in an era in which unprecedented and unpredicted political events are borderline commonplace. 

Capitol Building

US Senators Clash Over Impeachment Trial Procedures

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Right after the U.S. House of Representatives voted to impeach Donald Trump, Speaker of the House Nancy Pelosi surprised pundits everywhere by making a strategic move no one saw coming: instead of immediately deciding upon impeachment managers to send the articles of impeachment to the Senate, she decided to withhold the transmission of articles as leverage to coerce Senate Republicans to vote for what she considers to be a fair trial, which includes the calling of witnesses and the production of documents. Currently, Congress is in recess for the holidays, but negotiations surrounding the trial proceed nevertheless, even as lawmakers visit their families and constituents at their homes. 

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Senate Minority Leader Chuck Schumer has called upon four Republicans to vote in favor of allowing documents and witnesses during the trial, which Senate Majority Leader Mitch McConnell starkly opposes. As the procedures for the trial will be determined by 51 votes, and Schumer already has all 47 Democratic Senators onboard, only four Republicans would have to defy McConnell to ensure a trial with witnesses and documents. Given the fact that the president himself has said that he’d like to see witnesses during the trial, and almost 2 in 3 Republicans also want top Trump aides to testify at the Senate trial, Schumer and the Democrats hope that pressure from constituents will be enough to convince the necessary four Republican senators to side with Democrats on this matter.

Given the dramatic and historic nature of this impeachment, people around the world are paying very close attention to the U.S. Congress during these critical next few weeks, as the rules of the trial will have to be determined soon for it to begin early next year as intended. Accordingly, U.S. senators, who ultimately will shortly decide whether the president is fit to remain in office for the rest of his first term, are using the media to amplify their message either for or against a fair trial as they try to build their cases. Today, The New York Times published an opinion piece written by Patrick Leahy, a Democratic senator from Vermont, who wrote of the historic implications of the Senate’s upcoming decision, as this impeachment trial, no matter how it ends up proceeding, will set precedent for future impeachments and forever define Congress’s role in checking the misconduct of a duly elected president.

The actions the Senate takes over the next several weeks will at least in part outline the shape of future impeachments and more clearly define the nature of Congress’s power to check the executive branch.

In the piece, Leahy argues that the outcome of the upcoming trial will determine the validity of the Senate itself, and more broadly the importance of truth in our government. Leahy, who has served as a juror on six impeachment trials of five judges and one president, notes that senators must swear an oath to carry out “impartial justice according to the Constitution and laws,” and fears that the Senate will shortly abandon the idea of taking this oath seriously. This is because several Republican senators, including Mitch McConnell and Lindsey Graham, have already said they’ve made up their minds and that they don’t expect to act as fair jurors during the trial.

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Impeachment trials are wholly separate from other types of trials, as they are conducted in the Senate, which briefly operates as a court of law during the proceedings. The Senate has the sole responsibility of setting the rules of its trial, and as the Senate is characterized by the presence of partisan politicians who are unflinchingly loyal to the president, Democrats fear that the trial will end up being fundamentally corrupt. Already, McConnell, who will act as one of 100 jurors, has pledged that “there will be no difference between the president’s position and our position as to how to handle this,” creating a rare case of a trial in which the jurors collaborate with the defendant to ensure the outcome favored by the defendant. Presidential impeachments are rare in American history, and as such there exists little precedent for how they should be carried out; as such, the actions the Senate takes over the next several weeks will at least in part outline the shape of future impeachments and more clearly define the nature of Congress’s power to check the executive branch.

Impeachment 2

Legal Scholars Testify Trump Committed Impeachable Offenses

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Today, the first public hearing conducted by the Judiciary Committee in the House of Representatives began, as four legal scholars provided testimony to help lawmakers determine whether to issue articles of impeachment against President Trump. Three of the witnesses were requested by Democrats, and one was requested by Republicans; predictably, the three legal scholars called by Democrats testified that they believe that Trump should be impeached, whereas the fourth witness warned that the process of impeachment could establish a dangerous precedent. All four witnesses are highly decorated constitutional scholars, and are employed by universities like Harvard and Stanford. For Democrats, the purpose of this hearing is to educate both Congress and the American public about the constitutional process of impeachment and what actions necessitate it. Republicans used their speaking time during the hearing to complain about the process of impeachment, arguing that there do not exist any facts on the matter and frequently used parliamentary inquiries to disrupt the process, including a request for a vote on whether to subpoena the whistleblower.

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To make their point about why they believe Trump should be impeached, the witnesses employed analogies describing how similar behaviors by others would clearly be seen as wrong. For example, professor Pamela Karlan described the hypothetical example of a police officer who pulls over a speeding driver and offers not to write him a ticket in exchange for twenty dollars. In this hypothetical, the driver does not have twenty dollars in his wallet, but the police officer lets the driver off with a warning. Clearly, the police officer in this example is still guilty of the crime of bribery, even though his attempt was ultimately unsuccessful. Professor Karlan compares this example to the real-life actions taken by Trump, who similarly bribed the President of Ukraine with the promise of military aid in exchange for assistance in his re-election campaign in the form of opening an investigation into his political rival.

Ominously, the witnesses warned that if Trump is not impeached for this offense, then a precedent will be established that no president can ever be impeached for anything

Another impeachable offense discussed by the witnesses was obstruction of justice. The witnesses testified that Trump has engaged in a pattern of obstruction of justice, not only during the Ukraine investigation by ordering staff not to comply with congressional subpoenas for documents and testimony, but also during the Mueller investigation, as described in detail in the second half of the infamous Mueller report. Precedent has established that obstruction of justice is an impeachable offense, as the offense factored heavily in the impeachments of both Nixon and Clinton. Obstruction of justice has been considered impeachable because it harms Congress’ ability to carry out its constitutional duty of oversight over the other two branches of government.

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Throughout the witnesses’ testimonies, a common recurring theme was the intent of the Framers when they decided to include the mechanism of impeachment in the Constitution. The Framers specifically feared that a president would be naturally inclined to abuse the power of his office in order to undermine the election process. In fact, this very fear is what motivated some of the Framers who originally opposed including impeachment in the Constitution to change their mind. Under English law at the time, the only member of the government who could never be impeached was the King, and the Framers wanted to ensure that the United States would not become a monarchy or a dictatorship due to a president’s abuse of power. As such, the witnesses argued that impeachment exists for the very reason it is currently being used, which is to prevent a president from abusing his office in order to transform the government from a democracy to an authoritarian system. Ominously, the witnesses warned that if Trump is not impeached for this offense, then a precedent will be established that no president can ever be impeached for anything, as the actions taken by the president for which he is currently being impeached are precisely the ones for which the process of impeaching an American president was originally created.