When Senate Majority Leader Mitch McConnell blithely suggested on Fox News that he will conduct the Senate impeachment trial in full collusion with President Trump’s legal team, he handed Democrats a big opening.
By telling Sean Hannity that the process of Trump’s trial will be set up “in coordination with Trump’s legal team,” McConnell told the world he wants to rig the process to produce maximal benefit for Trump.
But McConnell might not actually be able to do this, if he doesn’t have 51 GOP votes for it — which could be the case, if vulnerable GOP senators don’t want to go along with it.
And that allows Democrats to make a public case for a much fairer and more open process — and to try to force those vulnerable GOP senators to take a stand on whether they, too, want a fair and open process.
Democrats could demand that the mountains of documents the administration refused to turn over to the House impeachment inquiry be admitted as evidence at the Senate trial. The administration stonewalled those documents on the absurd grounds that the inquiry was illegitimate.
But McConnell presumably can’t argue that his own impeachment trial is illegitimate, rendering that excuse a dead letter.
So Democrats could insist that the administration produce some of these documents during the trial.
That could be revelatory. During the inquiry, House Democrats subpoenaed documents from the State Department, the Office of Management and Budget, Vice President Pence and Trump’s personal lawyer Rudolph W. Giuliani, among others.
Those subpoenas (see here and here) solicited documents related to everything from Trump’s call with the Ukrainian president to the withholding of military aid. But all refused to comply — depriving Democrats of a paper trail that could have reconstructed the scandal in even more damning detail.
Democrats could also insist on the right to call witnesses, such as acting White House chief of staff Mick Mulvaney and former national security adviser John Bolton (both of whom likely have direct knowledge of Trump’s decision to freeze aid to extort Ukraine), as well as Giuliani.
How could such demands be made? Here’s where the process comes in.
How the process works
According to Molly Reynolds, a congressional expert at the Brookings Institution who has studied past impeachment processes, Democrats could use the 1999 impeachment of Bill Clinton as a model to press such demands.
In that impeachment, Reynolds says, Senate leaders Tom Daschle (the Democrat) and Trent Lott (the Republican) presided over negotiations to develop a process by which the House impeachment managers — the equivalent of prosecutors of the indictment detailed in the House impeachment articles — and the president’s representatives could solicit witness testimony and introduce other evidence.
Under that process, when House impeachment managers made requests for witnesses or other evidence, they were subject to a simple-majority Senate vote.
Following this model, Reynolds says, Senate Democrats could now demand that Senate Republicans agree to a similar process: one that would allow for votes during the trial on requests from House managers to admit documents that the impeachment inquiry subpoenaed — but was denied.
That process could also allow a vote during the trial (per requests from the House managers) on whether to hear testimony from witnesses like Mulvaney, Bolton, Giuliani and others.
Democrats could demand that the Senate hold a vote on setting up such a process. If McConnell allowed such a vote, and it passed by simple majority, that process would structure the impeachment trial, Reynolds notes.
McConnell could of course refuse, and instead call a full Senate vote on a process that precludes witness testimony and the soliciting of documents — which McConnell reportedly favors, because he wants a quick trial with no circuslike calls for Hunter Biden’s head — and no damning new revelations. If that passed by simple majority, that would become the process.
Of course, McConnell might not have 51 votes for such a process — because a handful of vulnerable GOP senators might balk at voting for something so obviously rigged to protect Trump. Indeed, reporting indicates he doesn’t have those votes yet — which means he can’t yet do what he promised Hannity he’d do.
So Democrats might be able to try to negotiate a more open process with a handful of those vulnerable GOP Senators, Reynolds says.
If such a more open process did get implemented, House impeachment managers could then demand Senate votes on their demands for documents and witness testimony, Reynolds says.
This, too, would challenge GOP senators to vote against learning the full truth.
“What we are likely to see depends on what 51 senators will agree to,” Reynolds told us. “A lot is likely to come down to what a handful of Republican senators, including those up for reelection in swing states, want to see out of the process.”
Democrats can seize on McConnell’s sneering proclamation that he’ll turn the trial into a massive coverup (which he may not even be able to do) to press for a process that could do the opposite — allow for a full airing out of aspects of this scandal that the White House has tried to keep buried.
And that might not be so easy for vulnerable GOP senators to resist.
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