Impeachment trial: A foregone conclusion belies big stakes

The pitched partisan battles over procedure and witnesses. The solemn scene of all 100 senators sitting quietly at their desks. The chief justice of the United States presiding over the impeachment trial of a president – only the third in U.S. history.

The Senate trial of President Donald Trump on charges of abuse of power and obstruction of Congress began in earnest on Tuesday with wrangling over rules, but its endpoint appears to be a foregone conclusion. The Constitution sets a high bar – a two-thirds vote, or 67 senators – to convict and remove a president from office. That’s hard to imagine this time, in a chamber controlled by the president’s own party.

And yet Republicans and Democrats are furiously strategizing – not to change the end result, but to shape public opinion, says Steven Smith, an expert on the Senate at Washington University in St. Louis. “This really isn’t about convicting the president, obviously, so the real question is whether or not the political context is evolving in a way that favors one side or the other.”

Unlike President Trump, the last two presidents threatened by impeachment – Bill Clinton in 1999 and Richard Nixon, who resigned in 1974 – were not facing reelection. And while it’s true that most polls show a nation evenly divided on the question of impeaching and removing the president, this election won’t be decided at the national level, but in swing states.

At the end of this trial, what will voters in Wisconsin, Michigan, Pennsylvania, and Florida think about the president? Likewise, how will voters view endangered Republican senators up for reelection – such as Susan Collins of Maine and Martha McSally of Arizona? Both took a hit in approval ratings in the latest state-by-state Morning Consult poll, with Senator Collins now the least-popular senator in the country – quite a slide for a senator with a history as a political bridge-builder.

“Republicans have complained that this is a political process, but for many of the senators taking votes, I think it has a major political impact on their own political fortunes going into 2020,” says Jessica Taylor of the nonpartisan Cook Political Report. Democrats have comparatively few competitive seats to defend, but for Doug Jones of Alabama, the most vulnerable Democrat, a vote to convict “could be his death sentence,” she says.

House vote set the stage

In the Democrat-controlled House, under the leadership of Speaker Nancy Pelosi of California, Democrats voted with near-unanimity on Dec. 18 to impeach, charging that the president abused his power by pressuring the government of Ukraine to investigate his political rival, Joe Biden, and Mr. Biden’s son Hunter, for his personal electoral benefit, and then obstructing Congress as it sought to investigate.

But the Senate is not the House. It has its own rules and is a more unpredictable body, led by its own wily, strategic politician, Republican Mitch McConnell of Kentucky.

Democrats on Tuesday accused the majority leader of a “cover-up” and complicity with the White House by introducing rules that would compress the time frame for arguments and putting off the question of calling witnesses and documents. Under pressure, Senator McConnell agreed to expand the timetable for arguments from two days to three (and 24 hours total) for each side.

Democrats say that witnesses and documents are essential to a fair trial, and that unlike in the Clinton trial, they have not been able to question all relevant witnesses in advance. An attempt by Democrats to subpoena documents failed late Tuesday in a vote along party lines. 

A rift over witnesses

With Republicans holding a 53-seat majority, Democrats need four GOP senators to join them in the call for witnesses such as former national security adviser John Bolton. It’s not clear that they will get them, though Senator Collins has said “it is likely” that she will support a call for witnesses, but only after both sides have made their cases and senators have submitted written questions – as was agreed on in the Clinton trial.

Of course, witnesses perceived as friendly to one side may prove not to be. “It’s unlikely that the Republicans will approve witnesses for the House managers without witnesses for the defense, and then honestly, all bets are off. Who knows what will come of that. It’s going to be a circus,” says Professor Smith.

The president will be represented in the chamber by the White House legal team, his personal lawyers, and celebrity attorneys, including Ken Starr, the special prosecutor who triggered the impeachment of Mr. Clinton, and Harvard constitutional law professor Alan Dershowitz.

The White House case

Over the holiday weekend, the White House submitted its first legal defense of the president. It does not dispute the basic facts of a request to investigate the Bidens and the withholding of military aid to Ukraine. But it describes the two articles of impeachment as a “brazen political act” and denounces the “rigged process” that brought them to the Senate.

The legal brief contends there was no abuse of power because the president broke no law and foreign policy is the domain of the president – not Congress.

As for obstructing Congress, the president’s legal team argues he has constitutional authority to protect the powers of the executive branch, and “asserting legal defenses and privileges is not ‘obstruction.’” The two articles of impeachment do not “remotely approach” the constitutional threshold for removing a president from office, they say.

The president himself remains a “wild card” in all this, says Sarah Binder, a congressional expert at the center-left Brookings Institution. Majority Leader McConnell and other Republicans have been able to “corral him away from his instincts” to get behind what’s in his best interest – a short, streamlined trial.

“But the president is watching this on TV, and will see those House managers go over his conduct, which he will take very personally,” says Ms. Binder. “Is the president going to fire off tweets, or get the Republicans to do a different kind of defense?”

The Democrats, on the other hand, want to lengthen the trial, allowing time for more evidence to come to light – as happened last week with Lev Parnas, a former associate of Rudy Giuliani, President Trump’s personal lawyer, and last week’s finding by the independent Government Accountability Office that the president acted illegally in withholding congressionally approved military aid to Ukraine.

“The House managers will want [people] to pay as much attention to the trial as possible. Whatever they can do to make it more attractive to public viewing, the better for them,” says Don Ritchie, former Senate historian. “The president’s defenders will want to minimize this, and get it over as quickly as possible.”

Both sides will be making their case to the public – not really to the senators, he says. With President Clinton, Americans knew of his sexual relations with a White House intern and that he lied about it under oath, but they differed over whether it was an impeachable offense. The same is true now, says Mr. Ritchie.

“Quite frankly, everybody knows what this president’s doing. The question is, is it proper for him to be doing this or not?” he says. “People are going to have to sort that out for themselves.”

To see all of The Monitor's impeachment coverage, go here.