WASHINGTON – After a rancorous, bitterly partisan face-off in the House over the impeachment of President Donald Trump, the matter moves to the Senate where leaders are making plans for a trial.
Spoiler alert: It’s going to be rancorous and bitterly partisan as well.
But the rules are going to be different.
Though it takes only a simple majority of the House to impeach, two-thirds, or 67 of the chamber’s 100 senators, must vote to remove the president. Although the House paraded witnesses behind closed doors and in public sessions, the Senate has no plans to call any witnesses. The impeachment process took nearly three months, but the Senate trial is not likely to last more than a couple of weeks.
Republicans, who are in the minority in the House, control the Senate, and Majority Leader Mitch McConnell, R-Ky., has made it clear he has no plans to foster the removal of the nation’s 45th president.
McConnell won’t be able to do much to keep the lid on the raw partisan emotions likely to spill out in a Senate that includes fervent Trump defenders such as Lindsey Graham of South Carolina and several Democrats, including Elizabeth Warren of Massachusetts, vying to take on the president in next year’s election.
The trial is likely to begin in January, when the Senate returns from the holiday recess, but a date hasn’t been set. Estimates for the length of the trial range from two weeks to six weeks, depending on whether senators simply hear oral arguments or receive evidence from documents and witnesses.
The Senate will consider two articles of impeachment approved by the House: one accusing Trump of abuse of power over his efforts to persuade Ukraine to investigate a political rival and the other accusing him of obstructing Congress by directing government agencies to defy subpoenas for documents and testimony.
The Constitution imposes only three requirements on a Senate trial: senators must be under oath, a conviction requires at least a two-thirds vote and the chief justice of the Supreme Court must preside if the president is on trial. Given that broad discretion, the Senate sets its own rules.
Republicans control the chamber with a 53-47 majority, and if they stick together, they could dictate a brief trial, as some leaders have sought. But if as few as four Republicans join Democrats, they could insist on calling witnesses.
“If this winds up being just arguments and a quick closing, I don’t think that’s going to help senators make an informed decision, nor do I think it’s going to help the nation reach a sense of closure on this,” said April Doss, a former Senate intelligence counsel and a former associate counsel at the National Security Agency who is in private practice at Saul Ewing Arnstein & Lehr. “I think people will come away from watching that trial feeling that they are no better informed than they have been already.”
McConnell and Trump’s White House lawyers haven’t tipped their hands on how they want to conduct the trial. McConnell said the decision on whether to call witnesses could come after House Democrats and White House lawyers have made their opening statements.
“Everything I do during this I’m coordinating with the White House counsel,” McConnell told Fox News on Dec. 12. “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.”
Senate Minority Leader Charles Schumer, D-N.Y., proposed Sunday a schedule for swearing in Supreme Court Chief Justice John Roberts and senators as jurors Jan. 7. House managers, who are essentially prosecutors, would begin their opening presentation Jan. 9, followed by White House lawyers, under Schumer’s proposal. The two sides would each have 24 hours to give opening presentations before senators would have 16 hours to ask questions under Schumer’s proposal.
Whether to call witnesses – and which ones – are questions that haven’t been resolved. The negotiations will occur in a polarized political landscape.
Schumer proposed summoning four witnesses who didn’t testify during the House inquiry, including acting White House Chief of Staff Mick Mulvaney and former national security adviser John Bolton.
“I expect to have support from Democrats and Republicans because the argument is so strong,” Schumer said Monday.
McConnell slammed Schumer’s proposal on the Senate floor Tuesday, saying he wanted “a fishing expedition” to fill holes in the House’s flawed investigation. McConnell said deciding on witnesses before the end of opening presentations could set “a nightmarish precedent.”
“We don’t create impeachments over here,” McConnell said. “We judge them.”
If the door is open to witnesses, Republicans have suggested calling the whistleblower who complained about Trump’s dealings with Ukraine and House Intelligence Committee Chairman Adam Schiff, D-Calif., who led the Ukraine investigation. Trump suggested calling former Vice President Joe Biden to testify.
Only two previous presidents faced Senate trials – Andrew Johnson in 1868 and Bill Clinton in 1999 – and neither was removed from office. President Richard Nixon resigned in 1974 before the House impeached him.
For Clinton’s trial, senators agreed unanimously to rules setting logistics such as scheduling, then couldn’t agree on a second set of rules governing live testimony from witnesses. The compromise was that several witnesses gave videotaped statements and excerpts were used in the trial. McConnell said he would prefer to follow that two-step process for Trump’s trial.
“The president’s counsel may or may not decide they want to have witnesses,” McConnell said. “We all know how this is going to end. There is no chance the president is going to be removed from office.”
For Trump’s trial, each side might want to present more documents and witnesses to flesh out their arguments. Schumer said documents and witnesses such as Mulvaney and Michael Duffey, associate director at the White House Office of Management and Budget, could help explain why military aid to Ukraine was delayed. Rep. Andy Biggs, R-Ariz., proposed unsuccessfully in the House Judiciary Committee to change the articles of impeachment to reflect that Ukraine got its aid after the country adopted anti-corruption laws.
Swing-state senators are likely to favor a thorough trial to justify their votes for conviction or acquittal. Among Republican senators who face elections in 2020, Democratic nominee Hillary Clinton won two of their states in 2016 – Sen. Cory Gardner of Colorado and Sen. Susan Collins of Maine – and Trump won two with a plurality – Sen. Martha McSally of Arizona and Sen. Thom Tillis of North Carolina. It’s not clear how that dynamic will figure in the trial. Other Republicans, such as Sens. Mitt Romney of Utah and Lisa Murkowski of Alaska, have questioned Trump’s dealings with Ukraine – without supporting impeachment.
Doss said both leaders are undoubtedly counting votes to see what the majority will support. McConnell said impeachment may backfire in swing districts that Democrats won to reclaim the majority in the House. Schumer said “many” Senate Republicans have told him privately that what Trump did was wrong, but they are not sure enough facts have been presented to remove him for high crimes and misdemeanors.
“I think this uncertainty arises from the fact that impeachment is a process that inherently involves both legal and political dimensions,” Doss said. “Impeachment is a political process, ideally not in the sense of partisan politics, but in the sense that it is the legislative branch of government that is examining the propriety of the behavior in this case of the chief executive.”