“Senators will make their first moves today,” says CBS News, but Mitch McConnell has already made his first. In the rules that McConnell unveiled last night, the Senate will offer both sides equal time to make their cases, but envisions the Senate remaining in session for 16 hours at a time in order to expedite the process on the calendar. Any witnesses will have to get a majority vote as expected, which was also the case in the Bill Clinton impeachment trial in 1999.
McConnell’s rules package had one surprise change from that trial, though — the Senate will not automatically admit the evidence from the House. That will also take a majority vote, a move that made Democrats furious last night:
McConnell’s organizing resolution, which he circulated late Monday afternoon, offers each side 24 hours to make its opening arguments, starting on Wednesday but compressed into two session days. It is unclear whether Democrats would press to use all their time, which could push testimony past midnight.
After the House managers and Trump’s lawyers make their case, senators will be allowed 16 hours to question the opposing sides.
After that, the sides will debate for a maximum of four hours on whether to consider subpoenaing witnesses or documents at all, followed by a vote on whether to do so. If a majority of senators agree, then there will probably be motions from both sides to call various witnesses, with subsequent votes on issuing subpoenas.
The resolution also allows Trump’s team to move to dismiss the charges at any time — although it is not explicitly mentioned in the four-page measure — because doing so is allowed under standard impeachment trial rules. The Senate trial also won’t automatically admit evidence from the House process, according to GOP officials, a key difference from the impeachment trial of President Bill Clinton more than two decades ago. Though the material will be printed and made available to senators, it won’t be automatically admissible unless a majority of senators approve it.
The resolution infuriated Democratic senators, with Senate Minority Leader Charles E. Schumer (D-N.Y.) calling the document a “national disgrace” and accusing McConnell of shrouding testimony and rushing the trial.
Schumer says he plans to bring amendments during the debate over the rules today to change the schedule and the conditional exclusion of House evidence. He can propose as many as he likes, but McConnell would not have put this proposal through without at least 51 votes locked in for them. He’s likely got all 53 Senate Republicans in support of this rules package, as it balances the needs of the vulnerable centrists with the outrage of the die-hard Donald Trump supporters who wanted an immediate dismissal.
It’s also pretty clear why this would be popular among McConnell’s caucus. Senate Republicans have aired their frustration with the rushed and partisan process the House used to develop its evidence. They couldn’t do anything about that at the time, but they sure can do something about it now, especially since they have castigated the evidence and testimony as second-hand and incomplete. If that’s the case, why admit it, or at least those portions which are unreliable? That is what courts routinely do — decide on which evidence should be admitted and which should be excluded. Just because prosecutors prepare evidence doesn’t mean it gets automatically admitted, nor does it mean it carries plenary weight with a jury, either. This rule change is a big middle finger to Adam Schiff and Jerrold Nadler, and perhaps Schiff in particular.
However, one can also understand the frustration of Senate Democrats over this last-minute change. McConnell got an awful lot of mileage with his claim that the Senate would adopt the same rules for Trump as it did for Clinton when he refused to negotiate with Nancy Pelosi. Schumer tried pushing McConnell into other concessions with a media campaign while Pelosi held up the articles, which also went nowhere. After riding a sauce-for-the-gander argument for the past month, McConnell served up something unexpected.
Today’s debate in the Senate over these rules should be entertaining, with plenty of opportunity to use names like “Midnight Mitch” to grab the media’s attention. That, however, will be the extent of their power in what is going to be as much of a predetermined outcome as the House impeachment process. Senate Democrats had better prepare themselves to learn that their GOP counterparts learned a few lessons from House Democrats about exploiting majority control. This may not be their only unpleasant surprise in the next few weeks.
