The Senate Trial: Further Observations

The Trial

On Thursday, Moscow Mitch declared that—contrary to some previous reporting about his plans—Old Moscow would allow Trump’s lawyers to decide what witnesses to call (or try to call), what documentary evidence to present (or try to present), and what arguments to make.

Some commentators were shocked and surprised by this declaration. I am surprised at their surprise. Trump will be the person on trial. Counsel for the defendant determines what defense argument to make, subject to the judge’s refereeing—for example, to prevent the introduction of inflammatory evidence that is irrelevant to the defendant’s guilt or innocence.

Rules and Strategy

Anticipating the Senate trial in January, many of you will just enjoy the holiday season and stock up on beer and popcorn in advance of the trial. There is nothing wrong with this plan. As the song says, God bless ye merry gentlemen, let nothing you dismay.

However, should you be so inclined, you may wish to check out the Senate rules on impeachment procedure, found here, and a long explanation of how those rules might apply: Hilary Hurd and Benjamin Wittes, Imaging a Senate Trial: Reading the Senate Rules on Impeachment Litigation. Also worthy of a read: Greg Sargent and Paul Waldman, On impeachment, Democrats can put Republicans on defense. Here’s how.

Here, I will highlight the highlights of some of the highlights.

A “Motion to Dismiss for Failure to State a Claim”?

Often in litigation, clarity is the friend of one side and confusion is the friend of the other party to the lawsuit. In this case, lots of the Republicans have chosen the bumper sticker, “TRUMP DID NOTHING WRONG,” a slogan that utterly confuses two very different claims:

  • “he did nothing wrong because he didn’t do what the articles of impeachment say he did,” and
  • “he did nothing wrong because conduct described in the articles is impeachment is not only not impeachable, it isn’t even wrong.”

As I wrote a few days ago, the rules of civil and criminal litigation provide a pre-trial procedure for a defendant to argue that the conduct described in the complaint is not illegal. The Senate’s rules on impeachment do not refer to such a procedure, but I am sure that if Trump wanted to call for an initial vote on a motion to dismiss, the Senate would accommodate him. Indeed, fairness and logic would require the Senate to hold such a vote.

I assume that Trump and his defenders will not, however, push for a “motion to dismiss for failure to state a claim,” because, as I said, confusion is their friend and clarity is their enemy.

Democratic Witnesses—and the “No Direct Evidence” Argument

House members appointed as “managers” will steer the prosecution case. The big issue for them right now is whether to push for testimony from witnesses who do, indubitably, have “direct knowledge” of Trump’s intent: Giuliani, Mulvaney, Pompeo, Bolton. The Sargent and Waldman piece says yes, they should. So also say I, for what it is worth. (A rule of thumb says, never call a witness unless you know what her testimony will be,” but, hey, rules of thumb are made to be broken.)

Will the Democrats be Permitted to Call the Witnesses Who Spoke with Trump?

If Trump and his defenders object, then Chief Justice Roberts, as presiding officer, will make an initial ruling. If his ruling is in favor of the prosecution side, it can be overruled by vote of 51 Senators.

Wouldn’t you love to see the Republicans bellyaching about “no direct evidence”—and then joining with Trump to block testimony by everyone with direct evidence?

Can Witnesses be Compelled to Testify at a Senate Trial?

Yes, the Senate rules on impeachment so provide.

Will the Defense be Allowed to Call the Bidens, the Whistleblower, and Adam Schiff?

Same deal procedurally, of course. The Democrats have a valid argument that the testimony of these witnesses would not be germane to the issues being tried. The Chief Justice, as presiding officer, would make the initial ruling. Whichever way he might rule, if 51 of the senators want to hear from them, then the subpoenas will go out and they will have to show up and testify.

Republican Strategery

Moscow Mitch knows that “turning the trial into a circus” would not be good for those of his members in vulnerable states. Probably his best move, politically, would be to hear from the prosecution and just call for a vote on acquittal.

But if Trump forces him to go a different route, he’s now implying that that is what he will do. Most have construed this as Moscow Mitch’s being a total patsy for Trump. That may be so. What I detect, though, is some passive aggressiveness on Mitch’s part: if Trump wants to hang himself and demands the rope to do it, and if most of the Republican caucus decides to go along, then so be it.

A Yet More Extreme Scenario

Republicans bay at the moon about “no direct evidence,” then vote to block all the direct evidence from being considered.

Then they treat the country to a spectacle involving non-existent Democratic servers and about the Bidens.

That is apparently what Trump wants.

To the Orange Man all I have to say is, Go for it. Make my day.