Diary after diary bemoans “centrist” interference with a righteous and delightful impeachment. “Trump’s a crook,” people declare, “so we must impeach him!” And “true progressives demand impeachment and all those centrists and old white men must get out of the way or they will all stay home.”
But here’s a fun question for you. What happens if the House actually passes articles of impeachment? Because if you haven’t thought about that, you haven’t thought things through.
Yes, the House “Managers” act a prosecutors, the Senate acts as a jury, and the Chief Justice presides. But what are the rules?
Well, impeachment doesn’t have a set of procedural rules. The Senate has its own rules. The Senate doesn’t follow the Federal Rules of Civil Procedure. In fact, it’s first act is to vote on the procedure for the impeachment at hand.
The Senate shall have power to compel the attendance of witnesses, to enforce obedience to its orders,mandates, writs, precepts, and judgments, to preserve order, and to punish in a summary way contempts of,and disobedience to, its authority, orders, mandates,writs, precepts, or judgments, and to make all lawful orders, rules, and regulations which it may deem essential or conducive to the ends of justice. And the Sergeant at Arms, under the direction of the Senate, may employ such aid and assistance as may be necessary to enforce, execute, and carry into effect the lawful orders,mandates, writs, and precepts of the Senate.
Not only does the Senate set the rules, it can also overrule, by vote, the decisions of the CJ:
The Presiding Officer of the Senate shall direct all necessary preparations in the Senate Chamber, and the Presiding Officer on the trial shall direct all the forms of proceedings while the Senate is sitting for the purpose of trying an impeachment, and all forms during the trial not otherwise specially provided for. And the Presiding Officer on the trial may rule on all questions of evidence including, but not limited to, questions of relevancy, materiality, and redundancy of evidence and incidental questions, which ruling shall stand as the judgment of the Senate, unless some Member of the Senate shall ask that a formal vote be taken thereon, in which case it shall be submitted to the Senate for decision without debate; or he may at his option, in the first instance, submit any such question to a vote of the Members of the Senate. Upon all such questions the vote shall be taken in accordance with the Standing Rules of the Senate.
The Senate even gets to hand-pick a committee and set special rules for the taking of evidence:
That in the trial of any impeachment the Presiding Officer of the Senate, if the Senate so orders, shall appoint a committee of Senators to receive evidence and take testimony at such times and places as the committee may determine, and for such purpose the committee so appointed and the chairman thereof, to be elected by the committee, shall (unless otherwise ordered by the Senate) exercise all the powers and functions conferred upon the Senate and the Presiding Officer of the Senate, respectively, under the rules of procedure and practice in the Senate when sitting on impeachment trials.Unless otherwise ordered by the Senate, the rules of procedure and practice in the Senate when sitting on impeachment trials shall govern the procedure and practice of the committee so appointed. The committee so appointed shall report to the Senate in writing a certified copy of the transcript of the proceedings and testimony had and given before such committee, and such report shall be received by the Senate and the evidence so received and the testimony so taken shall be considered to all intents and purposes, subject to the right of the Senate to determine competency, relevancy, and materiality, as having been received and taken before the Senate, but nothing herein shall prevent the Senate from sending for any witness and hearing his testimony in open Senate, or by order of the Senate having the entire trial in open Senate.
In the Clinton impeachment, the rules that were created for that particular trial gave each side four days to present their arguments, then allowed videotaped depositions. And the rules are entirely up to the Senate, meaning they are entirely up to McConnell.
So what’s to stop him, leading up to or during an election year, from giving the House one day to present their case, and then giving Trump unlimited time to respond, with no limits on materiality? What’s to stop them from turning the whole thing into a “this is all an illegal coup against a sitting President” farce? They’ll end up trying the FBI, Obama, Hillary Clinton, BENGHAZI!, and whatever other insanity they can dig up.
Anybody who thinks Mitch McConnell would turn an impeachment of Trump into anything but a procedural nightmare calculated to damage Democrats and help Republicans is naive to the point of comatose stupidity.
And all of this, of course, assumes the Senate follows its own rules. The Constitution gives the Senate “the sole Power to try all Impeachments.” With McConnell in charge, who is to say the sole power to try all impeachments doesn’t also include the sole power to decline to try an impeachment?
So with all due respect, until there is some reason to believe enough Republicans in the Senate will take impeachment as a serious duty, rather than an opportunity to help Trump (who is in trouble at the moment) and hurt Democrats, can we at least stop pretending that this is a litmus test of serious progressivism? Can we admit there might be darned good reasons to, as so many here contemptuously spit at us, “keep our powder dry?”