Congressional leaders have been shadow boxing on impeachment

Congressional leaders have been shadow boxing on impeachment
© Greg Nash

Both Democrats and Republicans are battling so earnestly about the procedures for a Senate impeachment trial that the public could be forgiven for thinking that something important was actually at stake. In fact, very little is, and not just because the ultimate outcome of an impeachment trial is hardly in doubt. Although Sen. Mitch McConnellAddison (Mitch) Mitchell McConnellTeachers union launches 0K ad buy calling for education funding in relief bill No signs of breakthrough for stalemated coronavirus talks State aid emerges as major hurdle to reviving COVID-19 talks MORE (R-Ky.) could commit in advance to allowing the House to call administration officials to testify, he surely will not. On the other hand, Sen. McConnell lacks the power to prevent such witnesses from testifying. The decision is likely to rest with the one important player who is saying nothing at all: Chief Justice John Roberts.

A basic premise of much news coverage of this dispute — that the rules for the impeachment trial have yet to be written — is simply false. The Senate established rules for impeachment trials over 150 years ago for the trial of President Andrew Johnson. It has applied those rules periodically for impeachment trials of federal judges accused of misconduct.

The Senate can amend those rules or temporarily abrogate them — but doing so takes a substantial bipartisan majority. In advance of President Bill ClintonWilliam (Bill) Jefferson ClintonBiden painted into a basement 'Rose Garden strategy' corner Giuliani says Black Lives Matter is 'domestic terrorist' group We have the resources to get through this crisis, only stupidity is holding us back MORE’s impeachment trial in 1999, Senate Majority Leader Trent Lott and Senate Minority Leader Tom Daschle worked out an agreement to do just that. But in the absence of a similar bipartisan agreement, the Senate’s standing rules will govern the trial of President Donald Trump.

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Sen. McConnell’s announcement that he has the votes to begin the trial without making a deal with Democrats may be technically correct but is highly misleading. First, he may have the votes to approve his proposed trial rules if they come to a vote, but Democrats can filibuster. Depending on precisely what Sen. McConnell proposes, he will need either seven or 14 Democratic votes to bring his proposals to a vote. In this polarized atmosphere, that is not happening.

More importantly, beginning an impeachment trial without an agreement on witnesses is very different from beginning an impeachment trial without witnesses. Sen. McConnell does not want witnesses; he had no reason to agree to procedures that would require them. But if he and the Democrats cannot agree to special rules in advance of the trial, the permanent rules will govern. And under those rules, the House’s impeachment managers can ask Chief Justice Roberts for subpoenas for any witnesses they wish to call.

The Democrats’ strategy also has been puzzling. Sen. Minority Leader Chuck SchumerChuck SchumerTo save the Postal Service, bring it online White House officials, Democrats spar over legality, substance of executive orders Schumer declines to say whether Trump executive orders are legal: They don't 'do the job' MORE (D-N.Y.) began the current debate with a letter demanding that Sen. McConnell negotiate special procedures like those used in President Clinton’s trial. What his leverage might be never was clear.

As we have seen, withholding the articles of impeachment — which Sen. McConnell does not want in any event — merely gave McConnell an opportunity to attack the Democrats for playing politics. Threatening to block an impeachment trial that would force vulnerable Republicans to cast awkward votes is a little like the playground bully telling you he is not going to give you a beat-down unless you give him your lunch money. I suspect Sen. McConnell had to exercise considerable self-restraint to avoid exclaiming “make my day!” Speaker Nancy PelosiNancy PelosiTeachers union launches 0K ad buy calling for education funding in relief bill No signs of breakthrough for stalemated coronavirus talks Governors air frustrations with Trump on unemployment plans MORE (D-Calif.) seems to be recognizing this by indicating that she will forward the articles next week.

Rather than quibble about the terms of special rules for impeachment, both parties should have started from the Senate’s permanent rules for impeachment trials. They are thorough and as fundamentally fair as any rules can be for an event of this kind. Following the Constitution, they put authority in the hands of Chief Justice Roberts rather than partisan senators. Although the Chief Justice is certainly very conservative, he has been determined to prevent the Supreme Court from being seen as a partisan institution. Refusing to grant House impeachment managers’ requests for subpoenas, as other presiding officers do routinely, would undo his hard work in this regard.

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If Sen. McConnell can hold his caucus together, the standing rules for impeachment allow them to overrule Chief Justice Roberts with a majority vote. Overruling a conservative Chief Justice, especially to prevent the Senate (and voters) from hearing what actually happened, would be an exceptionally partisan move for which voters might punish vulnerable Republican senators. Deeply committed to maintaining Republican control of the Senate, Senator McConnell probably would not put them to the test.

If Sen. McConnell attempts to attach skewed procedures to the resolution scheduling the impeachment trial, or if Democrats offer skewed procedures as an amendment to his resolution, senators of both parties should insist on sticking to the Senate’s permanent impeachment trial procedures. Unlike anything either Sen. McConnell or Sen. Schumer might propose, the permanent rules were not written with any particular impeachment in mind and thus represent a sincere effort to balance the interests of hearing out the House’s case for impeachment and granting the accused due process.

Agreed-upon trial procedures likely are not possible. Sens. Lott and Daschle could agree on such procedures for the Clinton impeachment trial in part because neither party particularly wanted it. Even more importantly, the facts of that case were already well-known and largely accepted by both sides: The question was not what the president did but rather whether it justified removing him from office.

In President TrumpDonald John TrumpTeachers union launches 0K ad buy calling for education funding in relief bill FDA head pledges 'we will not cut corners' on coronavirus vaccine Let our values drive COVID-19 liability protection MORE’s case, however, many of his supporters vigorously contest allegations that he withheld appropriated aid from Ukraine to coerce its president into launching investigations that could benefit Trump’s re-election. Sen. McConnell himself has described the House’s case as “very weak.” The president’s supporters also argued that House Democrats established rules for their impeachment hearings that were fundamentally unfair to the president. Finally, although the president’s supporters have argued that the Bidens’ corruption forced him to act as he did, neither Biden testified in the House.

With a clear dispute about the facts, with one side contending that the testimony obtained so far is problematic, and with both sides chafing over the absence of witnesses they assert are crucial to their cases, the two sides obviously are in no position to agree to cut off fact-finding in the Senate the way they did in 1999.

Nor should they be.

The Constitution designates the Chief Justice to preside over impeachment trials of the president for good reason. The Senate’s standing rules for impeachment trials were written impartially to facilitate a search for the truth. Neither Democrats nor Republicans should be seeking anything less.

David A. Super is a professor of law at Georgetown Law. He also served for several years as the general counsel for the Center on Budget and Policy Priorities. Follow him on Twitter @DavidASuper1