It’s a busy time for US legal academics visiting South African universities. Faculty colleagues and students ask what will happen in the US Senate when the impeachment trial of President Donald Trump starts later this week or next.
Presidential impeachment law is a pretty specialised area of research. It’s only happened twice before in history and then for reasons that strike many as questionable. The quite forgettable Andrew Johnson stood trial in 1868 for violating the almost-certainly unconstitutional Tenure in Office Act. The quite memorable Bill Clinton stood trial in 1999 for lying about an affair with a White House intern.
If impeachment is the ultimate remedy for tyrannical executives threatening our Democracy, then these two historical precedents are probably not the best examples. In both instances, the Senate acquitted.
What about this time with President Trump? If he did what he’s accused of –trying to extort a foreign government to smear domestic political rivals and then stonewalling Congressional attempts to investigate the extortion-- maybe he really does pose a threat to our Democracy.
That said, here’s my expectation: It will be a brief process scripted by the Republican majority leader to preserve the “dignity” of the Senate, but deny Senators the chance to see and hear new, important witness testimony and related documents.
Here’s my hope: It’s a food fight in the Senate.
Last month the lower chamber of Congress, the House of Representatives, approved two impeachment articles against President Trump. One article accuses Trump of abusing power by holding up the disbursement of military aid to Ukraine until Kiev announced corruption investigations against former Vice President and current Democratic Party Presidential candidate Joe Biden and his son, Hunter, who once served on the board of a Ukrainian gas company. There is no evidence –none whatsoever — that either Biden engaged in any corrupt deals. As Vice President, Joe Biden sought to remove an apparently corrupt Ukrainian prosecutor. The other article accuses Trump of obstructing Congress’ attempt to uncover this alleged abuse of power.
Transmission to the upper chamber this week requires an immediate trial. Several House members will serve as “managers” prosecuting the case. President Trump will name lawyers to defend him. The Chief Justice of the US Supreme Court will preside, and 100 Senators will sit silently as jurors.
Silently and, in theory, impartially. Senators swear a separate oath as impeachment jurors to do “impartial justice according to the Constitution and laws”.
Sworn oaths aside, impartiality may be in short supply. Republican Senate majority leader Mitch McConnell dismisses it as a “political charade”. He promises “complete coordination” with President Trump’s lawyers, so that the trial will be a brief, scripted affair with a pre-ordained outcome.
McConnell’s script calls for opening statements from House managers and Trump’s lawyers followed by written questions from Senate jurors read out by Chief Justice John Roberts.
His script then calls for an immediate motion to acquit President Trump --no witnesses to see and hear, no documents or other evidence to view and read. This motion to acquit can pass with a simple majority of 51 Senators. There are 53 Republican Senators, so it can pass easily. Thus, an impeachment “witch hunt” concludes and Trump claims total exoneration.
McConnell thinks his script preserves the Senate’s dignity in the face of a “slap-dash” House impeachment inquiry. Maybe so, but it keeps Senators and the public from seeing new witness testimony and related evidence that might very well contradict the storyline that President Trump did nothing wrong, either in his dealings with Ukraine or in his refusal to deal at all with investigating House Democrats.
45 Democratic Senators as well as two Independent Senators caucusing with those 45 are powerless to change McConnell’s script.
But what if three or four dissident Republican Senators toss his script? Maybe they’d like to hear from new witnesses with first-hand knowledge of President Trump’s actions and intent in the Ukraine affair. Former National Security Advisor John Bolton fits that description. To date he’s said nothing, but last week Bolton indicated that he would testify if subpoenaed by the Senate.
Bolton has first-hand knowledge of President Trump’s actions and intent surrounding his request last July that Ukrainian President Zelensky “do us a favor” by investigating the Bidens. If that first-hand knowledge is consistent with Bolton’s broader characterization of the Ukrainian affair as a “drug deal”, then his testimony will provide new support to abuse of power accusations against Trump and explosively so.
Republican Senator Mitt Romney said this week that he’d like to hear from Bolton. Republican Senator Lisa Murkowski also seems inclined to hear from witnesses like Bolton. Two more dissident Republican Senators motivated by principle - or home-state polls - could transform Senate Democrats from a powerless minority of 47 to a potent majority of 51.
How would McConnell and other loyalist Senate Republicans respond?
I think they would dispense with dignity and start a food fight like the ones we occasionally started when I was a kid back in primary school. When the cafeteria monitors weren’t looking, a kid might throw across the table a handful of whatever the cooks were slinging onto our lunch trays that day--creamed spinach was a favorite. One throw, then another, and another. Soon, every kid is in the fight.
That’s how a food fight might break out this month in the world’s most exclusive debating club. Senate Democrats “throw” Bolton’s testimony at loyalist Senate Republicans. They respond by trying to subpoena and depose the Bidens, whom they falsely accuse of enabling corruption in Ukraine.
Loyalist Senate Republicans throw the Bidens’ testimony at Senate Democrats. They respond by trying to subpoena and depose President Trump’s White House Chief of Staff Mick Mulvaney, who last October made the extraordinary statement that we should just “get over” Trump’s hold on Ukrainian military aid, no matter his intent.
Senate Democrats throw Mulvaney’s testimony at loyalist Senate Republicans. They respond by trying to subpoena and depose House impeachment manager Adam Schiff, who last August, may have prompted an anonymous government whistle-blower to report Trump’s hold on Ukrainian military aid.
Subpoena, depose, and repeat until witness lists are exhausted or public opinion stops it.
True, a food fight will lengthen the Senate impeachment trial and render it a little less dignified. But a food fight will make it a real trial with new, important witness testimony and related documents. This real trial will be less scripted, more improvisational. Senators will have to think and act on the fly.
We’re so much more likely to find out who they are and what they think has happened to our Democracy under President Trump.
Ultimately, a food fight in the Senate will help us understand what really happened last year, whether President Trump withheld military aid to compel a foreign government to fight corruption or smear a domestic political rival in the 2020 election.
It would take a two-thirds majority of Senators present to convict and remove Trump. In the end, that’s an unlikely outcome. But no matter the final verdict, a real trial would truly inform us.
That’s helpful for the public today. That’s important for US voters this November. That’s critical for our Democracy always.
Again, I expect a brief, scripted impeachment trial with no witness testimony, no related documents. But just in case, I’m making a big vat of creamed spinach –really green, slimy stuff. It’s ready to sling onto lunch trays for Republican Senators Romney, Murkowski, and one or two other potential dissidents currently reading McConnell’s script.
* Paul M. Vaaler teaches at the University of Minnesota’s Law School and Carlson School of Management.