For senators, an impeachment trial is a hybrid of law school and jury duty.
They sit for countless hours. Some take neat, handwritten notes in blue ink, like Elizabeth Warren. Cory Gardner has an omnipresent pad of post-its on his desk for small-scale scribbling. Others, like Republican Richard Shelby of Alabama, watch proceedings quietly and impassively for hours at time. But whatever their process, all 100 senators must determine how to weigh the evidence presented for and against the conviction of Donald Trump.
Oregon Democrat Jeff Merkley told Intelligencer that he had already taken over 50 pages of notes. He remarked that he might have taken more but the “piles of handouts” from House managers have reduced the number that he needed to take. He planned on going through all of his notes in “a systematic process” during the 16 hours allotted for senators to ask questions.
Merkley, a devoted player of KenKen puzzles, said that he was “more of a math guy than words guy” and planned to lay out a system to weigh the key points of each article of impeachment. The two-term senator from Oregon then said he would structure the information “so on each of those key points, what is the evidence that is brought to bear both for and against? So kind of one setup for and against.”
Battling a bad cold, Merkley said he felt “very depleted” as a result of the long hours of the trial despite being “normally being very high-energy during the day.” To cope with this, he said, “I’m doing a fair amount of standing and I’m getting glasses of ice cubes. So I’m crunching on ice cubes.” Merkley also said that he kept “little pieces of beef jerky” in his desk drawer. The Oregon Democrat compared the ordeal to being on a long road trip. “This is what I do when I drive,” he said. “When I’m on a drive and if I’m tired, I try to have something to sip or to nibble on. It somehow just helps me. Here, in this case, it’s ice cubes and standing. “
A non-lawyer, Merkley does have experience as juror. He served on a jury in D.C. before moving back to Oregon and seeking elected office. In the Senate, this was Merkley’s second impeachment, his first being the 2010 trial of federal judge Thomas Porteous, who was convicted of corruption and removed from office. Merkley noted that experience was “completely different — there was no partisanship. When we locked the doors and talked to each other in preparation, it was just like 100 senators with no party identity.”
In contrast, Kamala Harris, a former prosecutor, harkened back to her legal career. “I’m thinking of it in terms of the elements of the case,” and used a familiar law school approach of IRAC — issue, rule, application and conclusion — to organize her thinking about the case. Harris was able to sit back and appreciate the approach of the House managers from a technical standpoint. “They are doing it in a very logical way,” said the former California state attorney general. “I know the method that they are using. I appreciate it and I admire it.”
Despite her courtroom experience, Harris had never sat on a jury before, so the experience is new. She described herself as an “active listener” who was “not so good sitting down for long periods” and said that she was taking an “average” amount of notes compared to her colleagues.
Another senator with a legal background, Republican Josh Hawley of Missouri, told Intelligencer, “I’ve now been through all the briefs and responsive briefs several times.” The former law clerk for Chief Justice John Roberts said, “If you watch my desk, you’ll see staff coming because I’m requesting articles. I continue to read about impeachment, about precedent, about interpretative questions. I’ve read a lot of the cases under American law on bribery and extortion because that clearly is the Democrats’ case, what the elements are for that.“ Hawley added, “By the way, I’m confident after that [research] there simply is no legal case for bribery and extortion there, just zero.”
Hawley did say that he had been enjoying the trial. “It’s kind of fun,” said the Missouri Republican. “I love being a lawyer and I miss the practice of law, so this kind of exciting.” He mused, “It’s the closest I’ll ever get to being a judge, I’m sure.” But Hawley didn’t need the fun to go on too much longer. “Hopefully it won’t go on for six months.”