Terry H. Schwadron
Jan. 16, 2020
The impeachment trial shouldn’t come down to which tricks and maneuvers work best — for any side.
For perhaps one day, senators ought to be able to set aside the proscribed role as defenders of their partisan parties to consider whether Donald Trump’s repeatedly brusque treatment of the Constitution is beyond the pale set for impeachment.
But, of course, we know ahead of time that they cannot, and thus, we are about to be dragged once again through procedures that will be more for show than for results.
Still, one could hope that it is out of conviction that facts will be sought and that American voters can be assured that there has been an actual review.
At this moment, as we prepare for the start of whatever will pass as impeachment procedures, that is not the case. Instead, we have high-stakes political gamesmanship, we have people trying to pull legal tricks out of their MAGA hats, and we have the bullying sureness that comes from having a majority of votes.
In short, the Republican-dominant Senate is already assured of the impeachment trial outcome, just as Democrats in the House appeared sure that the impeachment charge would be voted.
Now that Speaker Nancy Pelosi has has sent the actual impeachment charges to the Senate and named her seven prosecutor-managers, Senate Majority Leader Mitch McConnell is signaling that he will mimic procedures followed when Bill Clinton was impeached, with a close relationship with White House druthers and with a majority-protected assurance that Trump will be cleared.
Witnesses or not, new evidence or not, the decision is all-but-in before the trial begins within the week. Even if Trump committed bad deeds. Even if Trump obstructed Congress. Even if the President’s ever-changing remarks show he is a little off his rocker.
Still, various senators, lawyers, pundits and friends are flourishing a set of tricks that can be used to undercut or dismiss the charges altogether.
Trump himself, who had championed a full trial that would call witnesses of his choosing, including Joe Biden and son, Hunter Biden, and the whistleblower whose complaint launched the review of Ukrainian quid-pro-quo case, now says the Senate should just dismiss the whole thing. Holding a trial, he says, would merely give credence to the House procedures in voting the charges.
That view, of course, reflects one of the two impeachable offenses here — the disdain for Congress as a legitimate and Constitutionally directed equal partner in decision-making.
Bolstering Trump’s call have been televised appearances by Rudy Giuliani, who said the proceedings reflect charges that are “fabricated,” and that the Supreme Court should summarily have the impeachment “declared unconstitutional.
Even his television host, Jennine Pirro was confused. Giuliani said the rules are “set by the Senate then the chief justice interprets the rules. The chief justice will be given the power to dismiss.” But he acknowledged that “there’s nothing in the Constitution that would allow the Supreme Court” to do that.
Indeed, we have no idea what Chief Justice John G Roberts Jr. will do as the trial’s presiding officer, but it is a good bet that he won’t summarily wipe the charges away.
Actually, In a column for the Washington Post, attorney James Robenalt laid out the legal basis for the Supreme Court to step in and review the impeachment trial of Donald Trump if there is evidence it was not conducted properly — but from the perspective opposite Giuliani. With McConnell readily admitting that he is working hand-in-hand with the White House to undercut the impeachment trial of the president — as well as signing as a co-sponsor a dismissal bill in the Senate that would allow throw all charges against Trump to be dismissed without a trial — Robenalt explains there is precedent for the Supreme Court to intervene to declare Senate proceedings unfair.
In another op-ed, conservative attorney George Conway and law professor Neal Katyal argued that Pelosi should “split up” the articles of impeachment — submitting the article of obstruction of Congress, but holding onto the article of abuse of power for further investigation.
That “investigation” would be the calling of former National Security Advisor John R. Bolton, who has promised to testify, but whose appearance would launch yet another round of executive privilege arguements in the Senate — and in court.
Their argument, of course, is that although there is plenty of evidence demonstrating Trump’s guilt, his obstruction has prevented all of the evidence from coming to light.
So, we’re surely walking into a minefield of procedural moves and cross-moves, all aimed to turn this proceeding about the appropriateness of keeping Trump in office into a strictly partisan political mess.
Frankly, it is all extremely tiring and disappointing. It is difficult to be a citizen standing by to have to watch maneuvering rather than a dissection or debate, even, about whether the president’s behavior finally has been so bad as to put the nation at risk through misuse of office.
In the meantime, Trump and his family still have a full slate of court cases facing them — three of them to be heard by the Supreme Court.
As Bloomberg News ticked off, House committees are seeking his financial records, a New York prosecutor wants his income tax returns, and public officials and private watchdogs say he’s unlawfully profiting from foreign government business. The House Judiciary Committee is suing to get the records of former Special Counsel Robert Mueller’s Russia investigation, and a court is being asked if former White House Counsel Don McGahn must testify.
Besides his policies that debase environment, civil rights, and separation of religion, Trump has abused emoluments clauses, campaign finance laws, nepotism and classified security.
The Supreme Court plans to hear arguments by April on two lawsuits filed by Trump seeking to block House committees’ subpoenas for his financial records. A ruling is likely by the end of June. And the Supreme Court also plans to hear arguments this spring on Manhattan Dist. Atty. Cyrus Vance Jr.’s subpoena for the president’s personal tax returns and business records. A ruling is due by the end of June. Vance subpoenaed the president’s financial records to investigate whether the Trump Organization falsified business records to cover up hush-money payments to porn star Stormy Daniels and one-time Playboy playmate Karen McDougal before the 2016 election. The records are held by the Mazars accounting firm.”
You might think the Senate could focus for a moment on two charges of wrong-doing without having to resort to procedural tricks or simple dismissal of any Constitutional challenge.