WASHINGTON – A generation has passed since the last presidential impeachment trial in the Senate, though in political terms, it may seem like a lifetime.
President Donald Trump’s trial on two articles of impeachment is likely to begin next month, almost 21 years to the day after President Bill Clinton’s trial on two articles of impeachment. Within a matter of weeks, as in 1999, it almost surely will end in his acquittal.
That’s where the similarities end.
Last time, the charges were all about sex and lying, and the major facts were “delivered on a plate” by independent counsel Ken Starr, recalls Frank Bowman, a professor and expert on impeachment at the University of Missouri School of Law.
This time, the president stands accused of pressuring a foreign government to investigate a political rival by delaying military aid, and Trump denies it. Witnesses refused to testify, and “boatloads of documents,” in Bowman’s words, have been withheld.
Last time, the Senate was controlled by Clinton’s political opponents, giving the president little chance of influencing the process. This time, Trump’s allies run the Senate and are coordinating his defense with the White House.
“Everything I do during this, I’m coordinating with the White House counsel,” Senate Majority Leader Mitch McConnell, R-Ky., said last week. “There will be no difference between the president’s position and our position as to how to handle this, to the extent that we can.”
Last time, Senate leaders negotiated rules and procedures for the trial that were approved unanimously. This time, fueled by the advent of social media and television networks that often seem like arms of the political parties, comity has been tossed aside.
“There is a grand tradition in America: ‘speedy and fair trials.’ We want both,” Senate Minority Leader Charles Schumer, D-N.Y., said Tuesday. “The (Republican) leader seems obsessed with ‘speedy’ and wants to throw ‘fair’ out the window.”
Last time, five to 10 Republicans switched sides to vote for Clinton’s acquittal on charges of perjury and obstructing justice. This time, nearly every Republican is likely to vote that Trump did not abuse his office or obstruct Congress.
“I don’t see the same type of impeachable offense here, at least from what’s been produced so far,” says former Republican congressman Bill McCollum, one of the House managers in the Clinton trial.
Last time, Clinton was in his second term and had approval ratings of 60% to 70%, and Democrats had just picked up seats in the midterm elections. This time, Trump seeks reelection and scores approval ratings below 50% in most polls.
“The opinion of the public is a big deal,” McCollum says. “Without popular support, you’re not going to remove a president.”
Last time, Clinton said he was “profoundly sorry” for his behavior. This time, Trump has taken to Twitter to pronounce his innocence and label the entire affair a “hoax” and “the greatest con job in the history of American politics.”
In a six-page letter to House Speaker Nancy Pelosi, D-Calif., that he wrote in part for the history books, Trump decried what he called a “partisan impeachment crusade.”
“By proceeding with your invalid impeachment, you are violating your oaths of office, you are breaking your allegiance to the Constitution, and you are declaring open war on American democracy,” he wrote.
For all those reasons, Trump’s trial in the Senate is likely to be much different from Clinton’s.
Setting the rules
The first order of business will be for McConnell and Schumer to negotiate at least some of the rules, just as Senate leaders Trent Lott and Tom Daschle did 20 years ago.
Lott and Daschle worked out a deal that passed 100-0. McConnell and Schumer have yet to meet, prompting Schumer to propose his own rules. He called for four witnesses to appear before the Senate: acting White House Chief of Staff Mick Mulvaney, former national security adviser John Bolton and two deputies.
“Trials have witnesses. That’s what trials are all about, and documents,” Schumer said. “Live testimony is the best way to go.”
That wasn’t his point of view in 1999, when Democrats opposed hearing from witnesses and tried to dismiss the case outright. Schumer and McConnell are among 15 senators who will participate in their second presidential impeachment trial.
The Clinton trial had three witnesses who delivered closed-door depositions, including Monica Lewinsky, the White House intern with whom Clinton had an affair. Excerpts of their testimony were played on the Senate floor, but witnesses did not appear in person, which hurt Republicans’ case.
“That virtually guaranteed the outcome,” says Jonathan Turley, a professor at George Washington University Law School who testified to Congress in 1998 in favor of Clinton’s impeachment and this month against Trump’s impeachment. If witnesses testify live this time, he says, “that will change the dynamic a great deal.”
Counting the votes
Once Chief Justice John Roberts has sworn in the House members who will present the case against Trump and the president’s defense team, each side will have a specified amount of time to present their cases. In the Clinton trial, that was three days apiece.
Then come questions from senators, which in 1999 were funneled through Chief Justice William Rehnquist, the presiding officer. That duty will be taken on this time by Roberts, a former Rehnquist law clerk who probably will try to play a minimal role.
The job is more umpire than judge or jury, ruling on procedural matters and potentially breaking tie votes – but not on conviction, which requires a two-thirds majority of the 100-member Senate.
One potential ending would be through a Republican motion to dismiss the charges, which could be passed with a simple majority vote. Republicans, who have a 53-47 Senate majority, probably won’t go that route for fear of failure. Democrats tried that in 1999 but were defeated on a nearly party-line vote.
Turley warns, “Some aspects of the Clinton trial are likely to come back to haunt them.”
Short of dismissal, conviction requires 67 votes, a nearly impossible task then and now. After a five-week trial, Republicans in 1999 could muster only 45 and 50 votes for the two articles of impeachment, far short of what they needed.
McConnell said last week there is “zero chance” of convicting Trump, making the result appear preordained.
“The case is so darn weak coming over from the House,” he said. “We all know how it’s going to end.”
Gallery: The Trump impeachment inquiry in pictures
Speaker of the House Nancy Pelosi asked the House Judiciary Committee to proceed with articles of impeachment against President Trump on Dec. 5, 2019.