I am hardly alone in noticing that between Senate Majority Leader Mitch McConnell’s “total coordination” with the White House and Sen. Lindsey Graham’s expression of open contempt for impeachment (I will NOT be fair!), impeachment is heading for a sham trial in the Senate — or rather, no trial at all.
A trial involves the presentation of evidence to a jury that swears to consider it impartially and apply the law (in this case, the Constitution). We risk not getting the evidence nor anything approximating an impartial jury if McConnell gets his way.
There are all sorts of ideas floating around about what can be done to prevent Republicans from injuring constitutional government in their attempt to defend the king-president. Let’s consider them sequentially, in the order they could be employed:
First, Senate Minority Leader Chuck Schumer, D-N.Y., has already attempted the most straightforward. The Post reports:
“In a letter to Senate Majority Leader Mitch McConnell, R-Ky., Senate Minority Leader Chuck Schumer, D-N.Y., outlined a number of procedural demands that Democrats say would make the Senate trial fair and able to be completed ‘within a reasonable period of time.’
“That includes subpoenas issued by Chief Justice John Roberts for acting White House chief of staff Mick Mulvaney; Robert Blair, a senior adviser to Mulvaney; former national security adviser John Bolton; and Michael Duffey, a top official at the Office of Management and Budget. Mulvaney, Blair and Duffey had been subpoenaed by the House committees and defied the summons; Bolton has not been subpoenaed but indicated he would fight one in court.”
Schumer’s letter pointedly reminds McConnell: “These provisions are modeled directly on the language of the two resolutions that set forth the 1999 trial rules. The first of those resolutions passed the Senate by a vote of 100-0, and the second resolution, allowing House Managers to call witnesses, passed with the support of all Senate Republicans.”
Second, if McConnell declines to reach agreement with Schumer, a group of Republican senators (three to deprive of a majority) can object to rules that do not incorporate most of Schumer’s proposals. This would take some political courage from Republican senators who claim to be interested in a factual inquiry and do not want to be seen as President Donald Trump’s stooges. Sens. Mitt Romney of Utah, Susan Collins of Maine and Lisa Murkowski of Alaska would be some of those most likely to go along.
Third, Speaker Nancy Pelosi, D-Calif., could, after the House vote on the articles, decline to send over the articles until such rules for a real trial can be agreed upon. Give McConnell, say, 30 days to get this right. While the House makes clear that impeachment is urgent, there is no remedy for a clear and present danger in a farcical non-trial.
Fourth, some have suggested that unless McConnell agrees, Pelosi should never send over the articles. The impeachment would be a permanent stain on Trump’s presidency, he would be denied his sham trial and once more the Republicans’ contempt for the Constitution would be on full display.
I would prefer a fifth alternative, namely for Democrats to make a motion, appealing to Roberts, to allow for the presentation of evidence and issuance of subpoenas of key witnesses. Roberts could well decline, ceding to the Senate the right to make the rules, but at the very least, Republicans would have to publicly defend their sham.
Finally, the backstop here is the voters — both in the form of peaceful demonstrations against Republicans’ blatant disregard of their constitutional oaths and at the ballot box, when those who refuse to honor their responsibilities as jurors can be tossed out.
That is the sequence that I would suggest Democrats follow, avoiding if at all possible a permanent refusal to send over the articles. Ultimately, the only guarantee rests with the voters, a fact not to be lost on Democratic primary voters as they choose the nominee best able to defeat Trump.
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