Trump Trial Takes Shape in the Senate

Chief Justice John Roberts arrives in the Senate to be sworn in as the impeachment trial’s presiding officer. Photo: Tom Williams/CQ-Roll Call, Inc via Getty Images

The Senate impeachment trial of Donald Trump is formally underway. And “formally” is the right qualifier at present, since much of what we are currently witnessing are the rituals prescribed by the Constitution and the standing Senate rules for this rare event: the march of House impeachment managers across the Capitol to present the articles of impeachment; the reading of said articles in the Senate chamber by lead House manager Adam Schiff; the arrival and swearing in of Chief Justice John Roberts as the trial’s presiding officer; and Roberts’s swearing in of 99 senators (one, James Inhofe of Oklahoma, is dealing with a family medical issue and will be sworn in when he returns to Washington). It’s quite the show for those who missed the last impeachment trial in 1999, but purely preliminary.

We’re only now beginning to get a sense of exactly what will happen when the trial moves into its substantive phase next week (after the Martin Luther King Jr. holiday).

First up will be Mitch McConnell’s “organizing resolution” to address details of the trial not already stipulated in the Constitution or the Senate’s standing rules. These will mostly involve time parameters for features of the trial we already know about (e.g., the arguments for removal of Trump by the House managers; defense of the president by his representatives; and submission of written questions to the contending counsel by senators). But McConnell is trying to use the organizing resolution as well to postpone any motions to hear witnesses or additional evidence, which of course Democrats are eager to offer in hopes that they can peel off four Republican senators and force witnesses like John Bolton or Mick Mulvaney into the trial.

This postponement of such motions was a feature of the 1999 organizing resolution for the Clinton trial. But then again, that one was passed by unanimous consent, and this time around, McConnell has made no effort to get Democratic support, arguing that the 51 Republican votes he has secured is enough. You can expect Democrats to claim that McConnell is trying to amend the standing rules by preemptively cutting off motions on evidence and witnesses, which requires 67 votes. A ruling on that motion by Roberts with the advice of the Senate parliamentarian could be the first test of how active and independent the chief justice intends to be in the trial.

However that preliminary skirmish goes, you can expect Democrats to make constant efforts to test McConnell’s control of a Senate majority in opposition to new evidence and witnesses, undergirding a party message that the trial represents a continuation of Trump’s attempts to cover up his impeachable conduct (a cover-up, which, of course, is the basis for the article of impeachment alleging obstruction of Congress). At any point, if four Republicans join the Democrats on one of these motions to open up the trial, things could spin beyond the Majority Leader’s control. In that case, all bets would be off in terms of timing, if not — barring something incredibly unexpected — the ultimate outcome of acquittal.

If McConnell has his way, the trial timetable will contemplate proceedings lasting roughly two weeks, designed to wrap it all up before a (presumably triumphant) Trump defiantly appears in the House chamber to deliver his State of the Union Address on February 4. All indications are that the White House is firmly onboard with this plan, and will no longer demand the articles be summarily rejected or that it be allowed to call its own witnesses (e.g., Hunter or Joe Biden). In another significant tactical victory for McConnell, the White House has abandoned any plans to include House Republican leaders in the trial defense team being led by White House Counsel Pat Cipollone.

The standing rules provide that trial proceedings begin at 1 p.m. each day, and proceed every day, except for Sundays, until the final verdict is rendered. This schedule will allow the chief justice to participate in morning oral arguments and deliberations in the Supreme Court. As has been thoroughly discussed, senators (including the four Democrats running for president who would prefer to be on the campaign trail) are expected to be present, and silent when the trial is in session, up to the moment they stand at their desks and announce “guilty” or “not guilty.” If things get hairy for Republicans, they also have the option of sponsoring a motion to dismiss the articles summarily, or even to adjourn the trial.

All in all, the trial is likely to be an exercise in orchestrated tedium punctuated by occasional drama. If no witnesses are heard, then it will feel like a condensed and more dignified version of the House impeachment inquiry. But if McConnell does lose control of a majority — or of his ultimate client, the president —then it may be difficult to get it back.

Trump Trial Takes Shape in the Senate