David Corn: Here's How Mitch McConnell Could Sabotage an Impeachment Trial

https://www.motherjones.com/politics/2019/10/heres-how-mitch-mcconnell-could-sabotage-an-impeachment-trial/

Here’s How Mitch McConnell Could Sabotage an Impeachment Trial
The Senate rules can be easily abused.
David Corn
Washington, DC, Bureau ChiefBio | Follow

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These rules do include provisions that could be abused by a party that controls the Senate to jigger the proceedings. During a trial, they say, the Senate can “make all lawful orders, rules, and regulations which it may deem essential or conducive to the ends of justice.” This reads like a blank check for mischief. A Senate majority possibly could vote to limit testimony or witnesses. Perhaps it could impose a time limit on the proceedings that would prevent a full airing of the case against Trump.

But isn’t the chief justice in charge? (Put aside the question of his possible bias for a moment.) The rules say he is, but on some matters he can be trumped by the party in control. They state that the chief justice “may rule on all questions of evidence including, but not limited to questions of relevancy, materiality, and redundancy of evidence and incidental questions, which ruling shall stand as the judgment of the Senate, unless some Member of the Senate shall ask that a formal vote be taken thereon, in which case it shall be submitted to the Senate for decision without debate.” (Emphasis added.) So if there is a debate over the introduction of a certain piece of evidence—say, Trump’s legal team raises an objection—the chief justice decides. Unless the Senate Republicans vote to overturn his ruling. The final say will go to the GOP.

The rules also allow the Republicans to keep much of the proceedings out of the public eye. Either the chief justice or a majority of the Senate can order that a committee of senators be established to “receive evidence and take testimony at such times and places as the committee may determine.” That can be done behind closed doors—though such a committee must subsequently provide the full Senate “a certified copy of the transcript of the proceedings and testimony.” The rules note that nothing prevents the Senate from “having the entire trial in open Senate.” But clearly a majority of Republicans could vote to conduct the trial in secrecy. (Most of the Clinton impeachment trial was public, but deliberations over the calling of witnesses and depositions taken of key witnesses were conducted privately. A bipartisan majority of senators voted to use excerpts from the videoed depositions instead of live witness testimony.)

The rules also note that the deliberations of the senators—the debate over whether Trump should be convicted or not—could also be kept from the public. The Senate has the right to “direct the doors to be closed while deliberating upon its decisions.”

At the GOP luncheon, McConnell told his Republican colleagues that a motion to dismiss the charges in a Trump impeachment trial—an idea floated by some Trump defenders as a way to short-circuit and quickly end the proceedings—would be determined by Chief Justice John Roberts. But the rules provide McConnell and his Republican majority latitude in other ways.

An impeachment trial is not straightforward business. The rules are not as well-established as those that cover federal trials. Important procedural questions can be presented to the chief justice. But the Senate rules essentially give the Senate the ability to reject key rulings of the presiding judge. McConnell is renowned for his wily mastering of Senate rules—and for his willingness to bust norms for political gain. (See Merrick Garland.) Though he has recognized the duty of the Senate to address—and not ignore—articles of impeachment, he may well have a trick or two in mind about how to conduct the trial—especially if he is bent on disposing of this controversy in a fast manner during holiday season. McConnell’s entire political career offers cause to suspect that his loyalty will be to a partisan outcome, not a fair process. And the rules of the Senate do not guarantee an impeachment trial will be free of McConnell shenanigans.