Why Trump’s impeachment trial is unlikely to result in removal from office
Some time early next year, 100 senators are expected to swear an oath ahead of the Senate trial of Donald Trump on charges of abuse of power and obstruction of Congress.
That oath reads: ‘‘I solemnly swear that in all things appertaining to the trial of the impeachment of Donald Trump, now pending, I will do impartial justice according to the Constitution and laws: So help me God.’’
The trial could, theoretically, result in Trump’s removal from office. But with Republican senators circling the wagons and majority leader Mitch McConnell vowing to work “in total coordination” with the White House on Trump’s defense, that outcome appears extremely unlikely despite the vow of “impartial justice”.
Instead, McConnell and his fellow Republicans have signaled they will seek to move the impeachment trial on and off the national stage as quickly as possible, with zero witnesses testifying and unclear allowances for Democrats to make their case.
“If the Senate blesses this historically low bar, we will invite the impeachment of every future president,” McConnell said in a floor speech Thursday. Earlier he had declared: “I’m not an impartial juror”.
The basic expectation is that Trump skates, with all 53 Republican senators taking the above oath and then, with the phrase “so help me God” still echoing in the chamber, voting to acquit. A two-thirds majority of senators – 67 if everyone votes – voting to convict would be required to remove Trump from office.
“Even in spite of the president’s clear misconduct, everything for Senate Republicans comes down to politics right now,” said Elliot Williams, a former justice department official and principal with the Raben Group, a public affairs and strategic communications firm.
“The president is immensely popular with Republican voters, and he has
shown that he is willing to declare war on any Republican who steps out of line. That will largely affect Republican senators’ behavior and that’s unfortunate.”
Political and legal analysts warn the senate impeachment trial might not run so smoothly as McConnell might wish, however.
Under historic senate rules, a simple majority of 51 votes would be enough to prevent a quick dismissal of the case, and to upend McConnells’ minimalist preferences on everything from calling witnesses to presenting evidence.
Further uncertainty will be introduced by the role of supreme court chief justice John Roberts, whose presence at the trial is prescribed in the constitution but whose actual role appears largely up to his own discretion.
“The rules give us a lot of specific stage instructions about what certain actors are supposed to say, the oaths they take, and at what time of day certain events are supposed to occur,” said Hilary Hurd, a JD candidate at Harvard Law who has dissected the procedure for the Lawfare blog.
“But when it comes to the major aspects of how this trial is actually going to work, it lays out some guidelines, but they’re default guidelines that can be changed with 51 votes. So the twists and turns of the actual trial are not something that can be envisioned by just reading the rules.”
In the weeks leading up to impeachment, an intriguing split developed between McConnell, with his quickie game plan, and Trump, who has expressed a desire to produce the trial as reality TV tailored for conspiracy theorists and Trump superfans.
Trump dared the House to impeach him “fast”, “so we can have a fair trial in the Senate,” with a parade of witnesses who would “reveal, for the first time, how corrupt our system really is.” The president’s draft witness list includes House intelligence chair Adam Schiff, House speaker Nancy Pelosi, Joe and Hunter Biden “and many more”.
In reply, Senate Democrats have proposed a witness list of their own, including former national security adviser John Bolton, acting chief of staff Mick Mulvaney and two officials from the office of management and budget, all of whom the White House blocked from testifying previously.
House speaker Nancy Pelosi injected added uncertainty to the process on the night of Trump’s impeachment, by saying the House would wait to refer articles of impeachment to the Senate until the terms of the Senate trial were made clear.
McConnell “says it’s OK for the foreman of the jury to be in cahoots with the lawyers of the accused,” Pelosi said. “That doesn’t sound right to us.”
The flagrant advertising by McConnell and colleagues such as Lindsey Graham – “I’m not trying to pretend to be a fair juror here,” Graham has said – of their intention to acquit Trump is “utterly inappropriate” and “shocking”, said Norm Ornstein, a resident scholar at the American Enterprise Institute and bestselling author of One Nation After Trump.
“Imagine if somebody’s up on a murder trial, and it turns out that the foreman of the jury has worked with the defense team before the trial started to make sure that the outcome was just what they wanted,” Ornstein said. “We would view it as outrageous.”
The peril, for Republicans, lies in a potential political price to be paid for seeming too dismissive of the allegations against Trump – and in the possibility that a small, renegade faction of four Republican senators could decide to hobble McConnell, if the majority leader is seen as moving too dismissively.
While such a breakaway faction of elected Republicans has yet to materialize on any Trump-related question, there remains the possibility that Republican senators who are either relatively free from Trump’s political power – Mitt Romney of Utah – or senators facing difficult re-election bids in 2020 – Susan Collins of Maine; Cory Gardner of Colorado; Dan Sullivan of Alaska; Joni Ernst of Iowa; Martha McSally of Arizona – could congeal to form some sort of temporary resistance.
“You have four, five, six Senate Republicans up in 2020 who are going to have to answer for those votes,” said Ornstein. “So this is frankly pretty tricky business.”
Williams said: “It’s hard to know how vulnerable Republican senators might act, given that for three years, we’ve heard maddening stories about how in private, Republican senators seem to be quite concerned about the president’s conduct – but they simply refuse to engage in their constitutional duties and hold the president accountable.”
Roberts is another wild card. The two chief justices to have previously presided at Senate impeachment trials – William Rehnquist in 1999 and Salmon Chase in 1868 – left two opposing models for the role, said Hurd, with Chase treating the Senate like a courtroom in which he ruled frequently, and Rehnquist treating it like a political theater in which he played a limited role.
“Roberts is obviously Rehnquist’s protegé,” said Hurd. “How he decides to approach this is anybody’s guess, and I imagine this is going to have a huge effect on how the different strategies will work themselves out.”
What’s at stake in the Senate goes beyond the political fate of any member of Congress, Williams said.
“The core question here is what standard do we want to set for future presidents,” said Williams. “If we accept that future presidents can invite foreign meddling in our elections, then senators are free to condone that.
“That would be a very sad day for American democracy.”
Even in spite of the president’s clear misconduct, everything for Senate Republicans comes down to politics right now
Elliot Williams