Saturday, September 28, 2019


Philip Bump of The Washington Post believes that Mitch McConnell might simply refuse to conduct a Senate trial if the House impeaches President Trump.
There exist Senate rules of procedure that dictate how impeachment trials should be run. As Michael Dorf, Robert S. Stevens professor of law at Cornell Law School, put it in an email to The Post, the rules include a “a lot of ‘shall’ language” — language that gives McConnell and the Republican majority a lot of flexibility in how they conduct a trial.

Or whether they conduct a trial at all....

“As a practical matter,” he continued over email, “the Majority Leader will have substantial discretion on the process, if any, he fashions in response to the articles.”

“If any.” In other words, impeachment trials are themselves one of those “what the norms dictate” activities of the Senate. McConnell could simply decide against holding a trial at all. Nothing goes on television. No more evidence comes to light. From a majority leader who simply declined to hold a vote on a presidential Supreme Court nominee, it’s far from inconceivable.
That was my first thought as well. But as the L.A. Times reported yesterday, "Senate Majority Leader Mitch McConnell said Friday that if the House does vote for impeachment, the Senate 'has no choice' but to hold a trial to decide whether to remove Trump from office." McConnell said the same thing to NPR months ago: "If it [impeachment] were to happen, the Senate has no choice. If the House were to act, the Senate immediately goes into a trial."

McConnell is sleazy, but a bait-and-switch isn't his style. Before he blocked Merrick Garland, he told us he was going to do it -- hours after Antonin Scalia's death, he announced that no Obama appointee would clear the Senate.

So I assume McConnell has calculated that his party and Senate caucus will benefit more from holding a trial than from refusing to hold one. I just don't know how he plans to conduct it.

Is the word "immediately" in that NPR interview a clue? There have been two presidential impeachment trials in U.S. history, and neither one took place immediately after the House vote. Bill Clinton was impeached by the House on December 19, 1998; the Senate trial began on January 7, 1999. Andrew Johnson's impeachment vote was on February 24, 1868. The impeachment court convened in the Senate on March 5, but the trial didn't begin until March 30.

It wouldn't surprise me if McConnell is being very literal when he says he intends to begin the trial "immediately" -- and I mean within hours of the House vote. I could imagine that he wants to catch the House managers flat-footed by rushing the trial. Remember how McConnell nearly got an awful Obamacare replacement bill passed in 2017:
... Republican senators nearly passed Trumpcare with only 50 votes after no hearings, no bipartisan outreach, and so little transparency that even most of them had no idea what would be in it until a few hours before their middle-of-the-night roll call.
And remember how the Trump tax bill cleared the Senate later that year:
The 490-page bill was unveiled only hours before a middle-of-the-night vote early Saturday, without the typical debate expected for such a sweeping package that will affect nearly all Americans. It was approved to applause from Republicans in the chamber, but the Democratic side was empty, senators long gone....

McConnell, questioned afterward about the closed process, defended his legacy.

“This has gone through the regular order,” he told reporters. “There have been multiple hearings, mark-ups, an open-amendment process. Everyone had plenty of opportunity to see the measure.”

Democrats balked at that assertion, noting the bill was still being changed as late as Friday evening, with scribbled notes in the margins. McConnell dismissed their complaints as the language of defeat.

“You complain about process when you’re losing,” he said.
I think that's how he'll conduct a Senate impeachment trial: with haste and with no transparency about process, except within his own caucus. (Chief Justice John Roberts, who's constitutionally required to preside over the trial, will also be let in on his plans, but not the Democrats.) I think McConnell might want the trial, or at least key parts of it, to take place in the middle of the night -- when he says the Senate will take up impeachment "immediately," he might mean that the trial will start literally hours after the House vote, possibly at 11:00 P.M. or midnight.

The goal of this and other McConnell maneuvers will be to humiliate the Democrats, to watch them squirm as he makes a mockery of the process while piously claiming he's doing his constitutional duty, all with a barely concealed shit-eating grin.

One benefit of this for McConnell is that viewers won't watch live and gavel-to-gavel. The TV footage most people will see, on both mainstream news and Fox, is Democrats howling with impotent rage at his trickery. If he pulls this off, right-wing voters will love it; everyone else will regard Democrats as hapless.

I'm not saying that Democrats shouldn't impeach. I'm saying that they should be ready for this, and be gaming out McConnell's plan now, so they can do whatever they can to thwart it. Maybe they should start accusing him of bad faith well before the impeachment vote -- it's not as if that would be presumptuous. If they loudly express doubts about his willingness to conduct a fair trial, maybe they can force him to be fair, or at least a tiny bit fairer than he was planning to be. They shouldn't get caught by surprise. McConnell will make a mockery of the process unless he's pressured not to. That's obvious.


UPDATE: This HuffPost story suggests what could happen:
The Republican leadership issued a memo Saturday clarifying that the Senate must take action if the House of Representatives approves articles of impeachment against President Donald Trump. The statement came in response to concerns that the Senate could simply refuse to hold a trial.

“There is no way we could somehow bar the doors and prevent the managers from presenting the articles to the Senate,” stated the memo, which was obtained by HuffPost. “The rules of impeachment are clear on this point.”

... McConnell could call a vote on a motion to dismiss, which would effectively amount to a vote to acquit Trump of wrongdoing.
That's McConnell's plan, I think: House managers present their case, a motion to dismiss passes on a party-line vote, trial's over.

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