During initial intra-Republican discussions of a possible Senate impeachment trial of Donald Trump, the president reportedly favored quick disposal of articles of impeachment by an immediate motion to dismiss. When Republican senators objected to that idea on grounds that it looked like they weren’t taking their constitutional duties seriously, the White House agreed to compromise last month, according to the Washington Post:
A group of Republican senators and senior White House officials met privately Thursday to map out a strategy for a potential impeachment trial of President Trump, including rapid proceedings in the Senate that could be limited to about two weeks, according to multiple officials familiar with the talks …
Even a two-week trial could run counter to what Trump has expressed privately. The president is “miserable” about the impeachment inquiry and has pushed to dismiss the proceedings right away, according to people familiar with his sentiments, who spoke on the condition of anonymity to discuss Trump’s views.
But now there are signs that the worm has really turned, and Trump is interested in putting on a show in the Senate designed not only to defend himself but to torment his enemies, as CNN is reporting:
Trump, who as recently as Wednesday lamented impeachment as a “dirty word,” has struggled to accept the prospect of becoming the third President in history to be impeached. But the President and White House officials are now signaling they will mount a robust defense in the Senate and look to turn the tables on Democrats during the President’s trial — including by digging in on the President’s unsubstantiated claims of corruption leveled at former Vice President Joe Biden.
It seems as if the president had a conversion experience while watching yesterday’s Judiciary Committee hearing on Air Force One.
On the flight home, with the TVs tuned to the hearing, the President praised the Republican questioning of the constitutional scholars who testified on Wednesday and coordinated the White House’s forceful response to one of the witnesses invoking his 13-year-old son’s name ….
“If you are going to impeach me, do it now, fast, so we can have a fair trial in the Senate, and so that our Country can get back to business,” Trump tweeted Thursday morning … “We will have Schiff, the Bidens, Pelosi and many more testify, and will reveal, for the first time, how corrupt our system really is.”
Can Trump and his allies essentially pull off repurposing the Senate trial into a show trial of his own devising? Perhaps to some extent, though it’s important to understand that neither the Constitution nor the standing Senate rules predetermine the scope of the trial, the witnesses each party (i.e., the House “impeachment managers” and the president or his legal counsel) can call, and the rules of evidence governing admissible matters. As a practical manner, the Senate sets its own rules on such details, and unless the two parties can cut a consensus deal (as semi-miraculously occurred before Bill Clinton’s impeachment trial), that means 51 senators can dictate them. There are currently 53 Republican senators.
Once these rules are adopted, Chief Justice John Roberts, who according to the Constitution will be sworn in as the chief presiding officer (but not the “judge” — the Senate itself is the judge and the jury), can rule on matters of procedure and evidence, but can also be overruled by 51 senators at any time. What will not be in play are the normal rules of evidence in criminal and civil trials; impeachment trials are their own beast, as Lawfare recently observed:
[T]he rules present a series of detailed stage directions for the initiation of the trial process, but these details don’t have a lot of substantive implications for the progression of the trial. And where things turn substantive, they also turn vague, putting a great many important questions in the hands of the chief justice and whatever constellation of at least 51 senators can get together in coalition on any given matter.
If Republicans do dictate the trial’s ad hoc rules, there’s not much question Trump’s attorneys will want to call witnesses relevant to their client’s claim that he was legitimately seeking to root out corruption in Ukraine, not trying to damage Joe Biden — a claim that could of course, if repeated and/or documented in an insanely high-profile impeachment trial, damage Joe Biden as much as anything the Ukrainians might have said or done as a “favor” to the president. Trump’s threat to drag his House Democratic tormenters like Pelosi and Schiff into the Senate dock is much more of a reach, but again, if 51 senators pretend to agree such testimony is relevant, it could happen. Meanwhile House managers will undoubtedly want to call in those witnesses Trump blocked from testifying before the House Intelligence Committee, but they might be blocked from doing so by those same 51 senators.
One wild card is how much (if any) value Trump and McConnell place on tying up the five remaining Democratic senators who are running for president in a six-day-a-week trial when they really want to be on the campaign trail. But if the trial turns out to be must-see TV for MAGA types and allows their hero to claim vindication, it could be like those Soviet show trials that Stalin held to amuse himself and intimidate actual and potential enemies. Perhaps his friend, the former KGB operative Vladimir Putin, could give him pointers.
