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Thoughts on the Trump Impeachment Trial

By January 17, 2020 No Comments

Thoughts on the Trump Impeachment Trial

JANUARY 17, 2020

As the Senate officially shifts from a legislative body to a court responsible for determining
whether to remove President Trump from office, I wanted to provide a few thoughts on the
upcoming trial.

During the Senate trial of President Clinton in 1999, I served as General Counsel to Senate
Assistant Majority Leader Don Nickles (R-OK) and played an integral staff role during the
proceedings. Majority Leader Mitch McConnell (R-KY) has sought to model the Trump trial
along the same lines as Clinton’s, and even in this age of partisan divide, the Senate’s customs
and traditions should largely carry the day.

The avalanche of coverage has provided a wealth of information about the allegations, the
Chief Justice’s limited role, and the process ahead. However, a few issues that are critical to the
next few weeks have not yet been covered in such depth.

  • Procedural Stunts – The initial moments of the trial have been solemn and by the book.
    However, the temptation to point out perceived shortfalls with the trial and/or to score
    political points will be great. While a few points of order or motions or calls for
    depositions or other information will be in order once an organizing resolution passes, is
    the Chief Justice really going to deny a Senator a chance to make a motion? During the
    Clinton trial, several motions were made and dealt with relatively peacefully. But
    partisanship and distrust in 2020 are much worse than 1999. The protests and
    procedural antics around the Kavanaugh hearings may be a more likely analogue.
  • Staff on the Floor – The organizing resolution for the trial provides sharp limits on the
    number of staff allowed on the floor. During the Clinton trial, just a handful of staff was
    allowed in the chamber, and only the party leaders were allowed to have staff by their
    side at their desks. This means most Members will be completely unstaffed during the
    proceedings and will have to rely on leadership aides for any real-time advice.
  • Mornings in the Senate – While the Senate is technically able to hold hearings and
    conduct other business off the floor, in reality each party may end up needing to caucus
    frequently in the mornings to determine strategy and negotiate twists in the road. If
    you are worried about a hearing the next few weeks, you may be able to postpone your
    pain until after the trial.
  • Question & Answer Period – The questions in 1999 were submitted on written cards to
    either the House prosecutors or House managers and read by the Chief Justice (see the
    attached image of one of the cards). That format denied Senators an opportunity to
    frame speeches as questions, like you often see in hearings, and ended up being fairly
    uneventful. This time, I expect you will see some wavering members submit questions
    designed to bolster their decision-making around some key questions of culpability and
    burdens of proof.
  • Potential Showdowns over Executive Privilege – Assuming McConnell is able to pass a
    resolution to get the trial started, they will not debate whether to call witnesses for a
    week or so. If the Senate authorizes witnesses, it’s entirely likely that the President will
    assert executive privilege on all or certain matters or document productions. You can
    imagine scenarios where the Chief Justice makes a ruling on such a claim, and the
    Senate votes to uphold or overturn the ruling, but the losing party (the President or
    House Managers) files an injunction in federal court to attempt to overturn the Senate’s
    ruling. Prior cases indicate a general uneasiness of courts to intervene in impeachment
    matters, but how hard would it be for the Democrats to find a willing federal judge to
    side with them? You can imagine some speedy and complicated litigation ending up
    back in front of Chief Justice Roberts and his colleagues.

While the trial may get off to a somewhat smooth and dignified start, we can expect a number of
twists and turns in the coming weeks that will require an army of armchair legal experts. Here are
the three most important questions that remain in limbo:

  • Will the Senate authorize taking depositions from witnesses, especially those who refused to
    appear before the House?
  • If the Senate does expand the investigation, will Republicans have the votes to include a review
    of the Obama-Biden era activities in Ukraine, including Hunter Biden’s activities?
  • Will the President seek to block any fact-finding in the Senate?

Here are a few of the key links to relevant materials for the upcoming trial: