Although you’d never know it from reading the august New York Times or the tonier Washington Post, or even from the cablenets, there is a detailed and elaborate set of rules governing the Trump impeachment trial called “Rules of Procedure and Practice In The Senate When Sitting On Impeachment Trials.” On point, no?
These twenty-four rules order what happens and when and include descriptions of the respective roles of the Senate’s presiding officer, the Chief Justice (the trial’s presiding officer), senators, witnesses and the person impeached. They provide for the delivery of a “writ” to Trump after the House’s impeachment resolution is “displayed.”
The writ demands Trump’s appearance, personally or by counsel, before the Senate at the impeachment trial there. The actual form of the writ is in the rules. (We had a great Bar Association show entitled, “Quick Henry, the Writ!” but it did not refer to impeachment, just to overworked associates at New York law firms.)
I’d like to be the Senate sergeant-at-arms employee tasked with delivering the writ to the west wing.
Mitch McConnell has been less than candid in describing what happened in the Clinton impeachment trial. He has said that in that impeachment trial one hundred senators approved rules bifurcating the trial with the first part being arguments pro and con by House managers and Clinton’s counsel followed by a Senate majority vote on whether to call witnesses. He has argued that what was fair for Clinton should be fair for Trump.
What McConnell failed to mention is that it was a unanimous consent Senate resolution to change the Senate’s rules in the Clinton case. Fat chance in getting unanimous consent on anything in the Trump impeachment!
A change in the rules requires sixty votes. Fat chance in getting that!
But to “reinterpret” the rules requires only a majority with the conflicted Vice President unable to break a tie and the Chief Justice probably enabled to do so. This is what McConnell may have up his sleeve. Enter Republicans Murkowski, Collins, Romney and a couple of others to stop any such manipulation.
The existing rules provide that the Chief Justice rules on questions of evidence and “all the forms of proceedings” subject to being overruled by a Senate majority. He can ask the senators to vote in advance of his ruling. This puts the Chief Justice in the unique position of perhaps being reversed by a majority of the jurors! (Rule 7)
Witnesses in the impeachment trial shall be heard by a committee of senators “if the Senate so orders” as though they were being heard by the entire Senate. Transcripts are supplied to the full Senate. Back to Murkowski et al. (Rule 11).
The big issue is whether McConnell would be willing to go the “reinterpretation” route in a matter of this significance and whether there are those in his conference who could stop him. I believe that to scuttle the rules on impeachment trials would show weakness especially because Trump will be acquitted anyway. What argument could Republican senators in close senate races advance if McConnell shoots down the rules?
In fact, abridging the trial rules could make a sow’s ear into a silk purse for the Democrats by exposing an acquitted Trump and the Republicans as unwilling to pursue the facts that are known to witnesses that the public may want to hear.