In a virtual party line vote on Dec. 18, the House of Representatives approved two articles of impeachment against Donald Trump, only the third president in U.S. history to be formally charged with “high crimes and misdemeanors,” accusing him of betraying the country for his own political benefit and obstructing a congressional investigation into his actions.
The two articles, abuse of power and obstruction of Congress, must now be presented to the U.S. Senate, which is constitutionally mandated to conduct a trial on the charges brought by the House. However, House Speaker Nancy Pelosi says that she’s delaying sending the articles to the Senate until that body establishes rules governing the trial of Trump. Pelosi has criticized Republican Senate Majority Leader Mitch McConnell for saying he would coordinate with the White House counsel during the coming trial, which she likened to the foreman of a jury being in “cahoots” with the defendant’s attorney.
McConnell is pushing for a short trial without witnesses, and has bluntly stated that he will not be an impartial juror in the Trump impeachment, invalidating the oath that he and all senators must take at the outset of the impeachment trial. Between The Lines’ Scott Harris spoke with Jennifer Taub, professor of law at Vermont Law School, author and board member of Free Speech For People. Here, she discusses her group’s advocacy for a credible and fair impeachment trial, and the consequences if the public perceives the trial to be a sham and a coverup.
JENNIFER TAUB: The Senate gets to make its own rules for the process of impeachment. And Nancy Pelosi is waiting – and this makes sense – to find out what those rules are so she herself knows how to proceed. And that’s because there are right now existing rules and those rules are from the Senate that are in place from the late 1980s and the Senate under those impeachment rules take over the minute that the articles of impeachment — the two that have already passed — are in a formal way brought over and presented to the Senate. And she can’t simply transmit them now without knowing the rules the Senate is going to follow going forward because there are all these issues like who will be the managers. And the word “manager” — we can think of those as kind of like the prosecutors who are going to prosecute the case.
How can she present those articles and with them, announce the managers if she doesn’t know how many managers are permitted, if there are any particular additional rules about how to present them because if you actually take a look, it’s kind of crazy, but the rules, it’s a nine-page document. It’s called Rules of Procedure and Practice in the Senate when sitting on impeachment trials, so to begin with, she doesn’t even know if they’re to rely on those old rules and then if they’re going to change the rules. What’s really interesting is you don’t need two-thirds of those present in the Senate to change your rules. You just need 51 votes.
BETWEEN THE LINES: One of the biggest questions are whether Mitch McConnell who runs the Senate, the Senate majority leader, whether he’s going to permit there to be live witnesses or even depositions of witnesses presented at the impeachment trial.
JENNIFER TAUB: At our most recent presidential impeachment trial — actually the second one that went went to trial was Bill Clinton. There were not live witnesses, but there were depositions of witnesses, that were read. The question here is whether they will have any witness testimony, whether in written form or whether there’ll be physically there. And that’s kind of an important question and if you think about this, deciding who your managers are going to be, this is really important. If you’re going to have live witnesses, you’re going to want to have your managers include attorneys who are skilled at taking direct testimony and at cross-examination. If there aren’t going to be any live witnesses, the lawyers or these managers are going to themselves be presenting evidence in some form, whether they’re allowed to use parts of depositions that were taken, whether they’re allowed to present videos or tweets or other kinds of pieces of evidence. All of that you would need to know before you decide who the most skilled people would be to do that, so they’ve got to iron that out just as a practical matter.
BETWEEN THE LINES: Professor Taub, those concerned about a sham trial where no witnesses are presented, where the evidence is either not heard at all or just glossed over. They’re concerned about the future, the future of checks and balances. What are your concerns about the long-term negative effect of a sham trial where the Senate just goes through the motions and there’s really no effort to get at the truth of these articles of impeachment that had been brought by the House?
JENNIFER TAUB: I’m concerned that if there is a sham trial, it will send a message that some people are above the law and that the process can be so elastic and so forgiving for those with the most power that will go through the motion, but they’ll never be held accountable. Whereas the rule of law is more harsh and less forgiving for the rest of us and that creates a disaffected society that doesn’t really trust our institutions. That’s a great concern to me. There’s already a perception when it comes to our criminal justice system that the most wealthy and connected, unless they are caught in a situation where there’s direct evidence that they’re not going to ever be prosecuted or go to jail, and even if they go to jail, they end up in these kinds of Club Med situations. There’s already this sense whether that’s founded or not.
It’s hard to know whether that’s fully supported by all of the data, but when you have the high-profile cases where people walk away, it does leave the public with a mistrust in the system – that there’s two kinds of justice and this would just be yet another example. If they’re so sure that what he did wasn’t wrong, then why is Mitch McConnell so deeply afraid to have a trial and allow the House to present its evidence and to bring witnesses before the Senate to allow them to hear that evidence and make a vote based on the evidence, as opposed to some predetermined political allegiance? It’s really shameful.
And so again, it’s my concern about losing faith in the rule of law. And this, you know, sometimes I care about it in the context of enforcing the law against private actors who are breaking the law – white-collar criminal codes, crimes that are outlawed to be considered white-collar crime. Whether, you know, whether that’s in the context of insider trading or in the context of the banks involved in the financial crisis and these errs people wonder why aren’t their crimes committed? Why weren’t these prosecuted here? I’m concerned about in the space of public corruption where we get this sense where if you have enough power, there are some people who believe you can get away with anything.
And what’s very disappointing is it leaves us with only one political party, the Democratic party who’s perceived now as being willing to create a set of rules where we would have a fair adjudication of an impeachment, whereas the Republicans are going to say, No, we’re not going to play by any kind of rule book. We’re just going to make this a political game all about power. Where does that leave the other party? Would they just be fools to themselves act honorably in the future? It really becomes a race to the bottom.