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.








The Senate Trial

Clinton Impeachment

There are lots of reports that Trump wants a big show trial, whereas Moscow Mitch wants to find a way to get the whole thing over with, real soon if not sooner. In other words, Trump wants to pander to the basest of his base, whereas Moscow Mitch rightly fears that won’t play well in suburbia.

I have nothing to add about that particular conflict, except that it will be fun to watch. With any luck, Doofus Donald will end up writing scathing tweets about Moscow Mitch, and won’t that be lots of fun?

But here are some more substantive thoughts, which may also be original. (At least I haven’t seen anyone else make them—yet.)

A Motion to Dismiss?

The articles of impeachment, which will soon appear in their last and final form, are analogous to the complaint in a civil or criminal proceeding.

In litigation, prior to going to trial, the defendant is always permitted to argue to the court that, even if everything said about him in the complaint is true, he still should go free because the facts outlined in the complaint do not amount to a violation of any law. (See Federal Rule of Civil Procedure 12(b)(6) and Federal Rule of Criminal Procedure 12(b)(3)(B)(v).)

By analogy, a president against whom articles of impeachment are offered ought to be permitted, in advance of any trial, to argue that the acts charged are not impeachable offenses.

Voting on a Motion to Dismiss

If Trump should choose to make a motion to dismiss in advance of trial, how many of the 100 senators would need to vote in favor, in order for it to pass?

The logical answer is that such a motion should be deemed to pass, and Trump should be acquitted, if 34 or more senators vote in favor of the motion.

A two thirds majority is required to convict and remove from office. If more than one third are willing to say in advance that they will vote to acquit even if everything charged in the articles of impeachment is proved beyond any reasonable doubt, then, logically, there is nothing to try, because their minds are made up.

Will Trump in Fact Make a Motion to Dismiss?

Who the hell knows?

Would a Motion to Dismiss Be Good or Bad for Democrats?

The first thing to say is that it’s not our call to make, and it’s not Moscow Mitch’s call to make, it’s Trump’s call to make. He will do whatever he wants to do.

The second thing to say is that, if he does choose to move to dismiss before trial, I don’t think we should argue that he has no right to make the motion.

We should not make that argument because it would be a lousy argument.

Thirdly, IMHO, it would be a good thing for us if he chooses to make the motion, whether or not we win or lose—and we would probably lose the vote. Because we would be having the right argument—what’s an impeachable offense?—not a factual argument based on Republican gaslighting.

And we would get a bunch of assholes on record saying that corruption and obstruction are just fine and dandy. And isn’t that going to look good in those 30-second ads?

Should Democrats Call for Witnesses?

Yes, I think Democrats should try to call Trump to the stand, along with Mulvaney, Pompeo, Bolton, and maybe some others.

Let the Republicans explain why the Democratic case is weak because it “lacks direct evidence,” when it’s Trump who is hiding the direct evidence.

Should Democrats Hop Up and Down if Republicans Try to Call Hunter and Sleepy Joe to the Stand?

Probably they should hop up and down. But, first, they should try to get the defense to be real clear about the precise nature of the alleged relevance of Hunter’s and Sleepy Joe’s evidence.

The Senate Impeachment Trial: Evidence and Procedure

impeachment ticket

Benjamin Wittes, who is very smart, writes today on What Impeachment Is Revealing About the Republican Party: Trump’s Senate trial will force voters to evaluate nihilism as the governing philosophy of a political movement.

He addresses several topics of interest, but I want to draw attention to his observations on process and rules of evidence in the Senate. Mr. Wittes writes,

Things get even murkier when the articles [of impeachment]—whatever they end up including—land in the Senate chamber. The Senate’s rules for impeachment trials are an odd combination of the highly specific and the maddeningly vague. On the one hand, they specify the precise time of day the impeachment trial shall go into session the day after the House members appointed to manage the trial march into the Senate chamber and present the articles the House has passed (1:00 pm, in case you were wondering—unless it’s a Sunday). On the other hand, they don’t specify rules of evidence, leaving almost everything of substance initially to the judgment of Chief Justice John Roberts and ultimately to the judgment of 51 members of the body, the vote required to overrule Roberts on a wide variety of motions.

In other words, the course of the Senate trial will ultimately depend on two variables that are, at this stage, mysterious. The first is how Roberts understands his own role as the trial’s presiding officer. The rules permit the chief justice to be—if he chooses—quite activist in ruling on evidentiary motions and the like, subject to being overturned by a vote of the Senate itself. The rules also permit him to be—if he chooses—quite passive; he’s entitled simply to submit such matters to the vote of the body itself in the first instance. So one key question is what role Roberts himself thinks he should play.

The other question is whether Republicans will be as disciplined in the Senate as they have been in the House in opposing Democratic actions, or whether a small number of defectors will give Democrats the 51 votes they will need to prevail on evidentiary disputes—either if Roberts’s rulings are challenged or if he submits questions to the judgment of the Senate. In other words, if the initial question is the personality and attitudes of the chief justice, the ultimate question is which side has the votes to carry motions.

A lot turns on these issues: Depending on the answers, one can imagine a Senate trial in which Mulvaney and Bolton would have to testify and executive-privilege claims would be unsustainable. One can also imagine a trial that would be short and, for Democrats, deeply frustrating.