Schumer and McConnell Play Chess Over Impeachment Trial Rules

These two wily operators are circling each other warily. Photo: Bill Pugliano/Getty Images

To read most press accounts, Senate Republican leader Mitch McConnell and his closest allies are fighting a lonely battle to keep the impending impeachment trial of Donald Trump short and bereft of witnesses. Meanwhile, Trump himself, House Republicans, and maybe some Senate renegades like Ted Cruz want a trial focused on the alleged corruption of the Bidens that the president was supposedly pursuing in his conversations with the president of Ukraine, while airing some of the vast conspiracy theories about the origins of the “witch hunt” Democrats have pursued to torment the poor, defenseless POTUS.

And now comes Senate Democratic leader Chuck Schumer with his own demands for a longer trial with witnesses, as the Washington Post reports:

The top Senate Democrat on Sunday called for subpoenaing several senior Trump administration officials who have yet to testify in the House’s impeachment probe as witnesses for President Trump’s likely trial — part of an opening salvo in negotiations that could determine the parameters for the Senate proceedings next month.

In a letter to Senate Majority Leader Mitch McConnell (R-Ky.), Senate Minority Leader Charles E. 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 G. Roberts Jr. 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 demands, it should be understood, are in the context of a possible (but not at all mandatory) bipartisan resolution laying out the details of an impeachment trial beyond the broad outlines set by the Constitution and the standing Senate rules. Such a resolution was enacted prior to the Clinton impeachment trial in 1999, to the great surprise of observers at the time. Absent a deal, the Senate majority can easily impose a set of rules of its own by a simple majority. And items not covered by those ad hoc guidelines may trigger rulings from the chair (in this case, Supreme Court Chief Justice John Roberts) and/or additional Senate votes, with 51 needed for a decision (except for procedures that require amendment of the standing Senate rules, which will require a supermajority).

Yes, Democrats — particularly in the House, where the White House’s obstruction of efforts to secure testimony from high-ranking administration officials led to an entire second article of impeachment — would love to get the opportunity to question Mulvaney, Blair, and Duffey, and have reason to think a subpoena issued by the chief justice in a Senate trial would not be challengeable in federal courts. But the White House and Senate Republicans are very unlikely to agree to such a stipulation. So what Schumer is probably conducting is a dual gambit to satisfy Democrats who want a deeper impeachment investigation than the House was able to pull off, while signaling “no deal” to McConnell on a bipartisan rules package — even as he talks the language of bipartisanship.

Schumer is also doing McConnell the favor of giving him a talking point against Republican demands for a broader, longer trial with the witnesses Trump wants. Absent a bipartisan deal (and Schumer is no more likely to accept the idea of Hunter Biden testifying than McConnell will go along with dragging Mulvaney into the Senate), decisions about calling witnesses could wind up being resolved on individual votes, and McConnell might well fear the possibility of just enough Republicans defecting on one or more that he could lose control of the parameters of the trial. In any event, the only available compromise is for both sides to back off demands for witnesses, leading to the short-and-sweet trial and acquittal McConnell wants.

This is a tricky business, though. House Republicans and allied professional troublemakers like Ted Cruz are unlikely to stop agitating for a longer trial with witnesses until Trump publicly goes along with McConnell’s plans. That’s why the Kentuckian is making such a big display of his “total coordination” with the White House, as I noted last week:

McConnell knows that the only way to put out the MAGA fire building for an insane-a-thon in the Senate is to get Washington’s chief pyromaniac on his side. What harm is a little groveling if it keeps the lid on the craziness? Being a megalomaniac wrangler is all just part of service in Trump’s army.

In other words, there’s a lot of not-entirely-sincere posturing going on about how this impeachment trial will proceed. My money would be on McConnell keeping a lid on it, providing Republicans with a quick acquittal, and Democrats with protection for Joe Biden and for the five Democratic senators currently in the presidential race who could be imprisoned in Washington during a long trial.

Having said that, Cruz has helped cast some light on the fiction that senators are exactly like jurors in a criminal trial who must remain totally silent during the trial:

“Senators are not required, like jurors in a criminal trial, to be sequestered, not to talk to anyone, not to coordinate. There’s no prohibition,” Sen. Ted Cruz (R-Tex.) said on “This Week,” calling impeachment “inherently a political exercise” and Trump’s impeachment a “partisan show trial.”

The standing Senate rules for impeachment trials provide no avenues for senators to speak (they must submit questions for any witnesses in writing), but there’s no gag order preventing them from saying whatever pops into their heads when the trial itself is not in session. I’d expect senators to have a lot to say late at night and on Sundays, though some will use the “juror” excuse to avoid reporters and angry constituents.

Schumer, McConnell Play Chess Over Impeachment Trial Rules