Midnight Mitch

This morning, on CBS This Morning, former Senator Jeff Flake (R-AZ) said of Señor Trumpanzee: "He'll either be gone by this time next year or four years from now. Then what happens to the Republican Party? My fear is people out there know that, even if this is not an impeachable offense, that the president did something wrong, and for Republicans to maintain that he didn't is just wrong, and this has long-term ramifications for the party if we act as if we are just devoted to the president no matter what, and this cult of personality that we've seen, we certainly saw it in the House... We have separation of powers, and Congress needs to stand up for its principles. Individual members do as well. It doesn't mean that they won't agree with the president. Often if you're Republican, you typically agree with a Republican president more often [than with a Democratic president]. But not all the time. Not to the extent particularly that the House Republicans did to say that the president did nothing wrong here."

Also this morning, conservative Democrat Claire McCaskill, who was kicked out of office by Missouri voters in 2018, predicted that Susan Collins would be the only senator to break with Moscow Mitch over allowing witnesses in the impeachment trial. Meanwhile, the 7 impeachment managers, led by Adam Schiff and Jerry Nadler, sent a letter to corrupt Trump attorney Pat Cipollone informing him that as a material fact witness in the trial he risks disqualification if he "assumes the role of both advocate and witness" blurring the line between argument and evidence. They inform him that the only way around this is for him to disclose all the evidence before the start of the trial." John Roberts will have to decide that.

Into this mix, stepped Nancy Pelosi, in many ways the ringmaster. She laid out the case this morning, against... MoscowMitch. "Leader McConnell’s plan for a dark of night impeachment trial," she wrote, "confirms what the American people have seen since Day One: the Senate GOP Leader has chosen a cover-up for the President, rather than honor his oath to the Constitution.  Below are key examples of how McConnell’s resolution deviates from the Clinton precedent in an effort to prevent the full truth about President Trump’s efforts to corrupt the 2020 election from coming to light. 

Unfairly Delays and Limits Possible Witnesses and Documentary Evidence

• Under the Clinton Rules, the Managers had received all of the documents and testimony through the Starr Report and accompanying evidence, all they did was additional depositions.  Here, President Trump has denied the House access to a dozen witnesses and has not provided a single document, so delaying the decision unfairly hampers the trial.
• The Clinton resolution guaranteed the parties 6 hours to actually make motions for subpoenas for new documentary evidence and present arguments on those motions.  In contrast, the McConnell resolution only permits the Senate to hear argument for 4 hours and vote on a very narrow question-- namely, the question of whether to consider and debate witness subpoenas.  If the Senate votes no at that point, no party or Senator will be permitted to move to subpoena any witness or documents.  If the Senate votes yes, both sides will be free to make motions to subpoena witnesses, and the Senate can debate and vote on them.  Even then the Senate will need to approve an additional resolution to provide for the actual delivery of the subpoena by the Sergeant at Arms, among other things.

Places Unreasonable Time Limits on the House Managers in an Unprecedented Rush to Cover-Up Trump’s Corruption

• The McConnell resolution places unreasonable time restrictions on critical phases of the trial.
• Pre-Trial Motions: For example, under the McConnell resolution, deadlines are dramatically compressed.  The Clinton rules gave the parties more than 72 hours to prepare motions and more than 40 hours to respond to the motions that were filed.  In contrast, under the McConnell resolution, the parties have less than 24 hours to prepare motions and just 2 hours to respond to any motions filed.
• Opening Arguments: The McConnell resolution also places an unreasonable limit of 2 session days for each side to present their case.  In contrast, the Clinton rules did not place any artificial limits on the number of session days the parties could present their opening arguments. The resolution simply placed a generalized 24 hour limit and, in practice, the parties each presented their opening arguments over the course of 3 session days. The McConnell resolution forces each side to squeeze 24 hours of presentations into 2 session days.
• Evidentiary Motions: In Clinton, the parties were given 6 hours under S.Res.16 to present arguments on 3 motions to subpoena witnesses. Under the McConnell resolution, the parties have 4 hours to present arguments on the question of “whether it shall be in order to consider and debate under the impeachment rules any motion to subpoena witnesses and documents.” And the impeachment rules would only allow a total of 2 hours for debate on any subpoena that the parties are ultimately permitted to make a motion for (under the impeachment rules).  

Excludes the Entire House Record and Paves the Way for Ceaseless Evidentiary Objections

• Under the McConnell resolution, there is no guarantee the House record will be entered into evidence at all.  And the first opportunity that it could be admitted into evidence would be after all of the following key trial events have taken place, including: 4 session days/48 hours of opening statements; 16 hours of Senator questions; and 4 hours of argument by the parties on the question of whether it is in order to consider any debate on a motion to subpoena witnesses or documents.  Under the Clinton rules, the record was immediately admitted into evidence and made available to all Senators.
• The upshot is that under the McConnell resolution, arguments that rely upon any piece of evidence in the House record may be subject to an objection by any Senator.

In a separate press release, she added that "McConnell's process is deliberately designed to hide the truth from the Senate and from the American people, because he knows that the President’s wrongdoing is indefensible and demands removal. No jury would be asked to operate on McConnell’s absurdly compressed schedule, and it is obvious that no Senator who votes for it is intending to truly weigh the damning evidence of the President’s attacks on our Constitution. The public now knows why Leader McConnell has been hiding his resolution: the Clinton comparison was a lie. Clearly and sadly, Leader McConnell has misled the American people. For weeks, he has insisted that he will adhere to the rules used during the Clinton impeachment trial and that 'fair is fair'-- but his proposal rejects the need for witnesses and documents during the trial itself. In contrast, for the Clinton trial, witnesses were deposed and the President provided more than 90,000 documents. President Trump undermined our national security, jeopardized the integrity of our elections and violated the Constitution all for his own personal, political gain. He has repeatedly said that he would do so again. Duty, honor and country are at stake. Every Senator who supports this sham process must be held accountable to the American people."

UPDATE: Adam Schiff Gets The Ball Rolling

Mr. Chief Justice, Senators, and counsel for the President, the House Managers on behalf of the House of Representatives rise in opposition to Leader McConnell’s resolution.

Before I begin, Mr. Chief Justice, the House Managers will be reserving the balance of our time to respond to the argument of the counsel for the President.

Let me summarize why we oppose Leader McConnell’s resolution:

Last week, we came before you to present the Articles of Impeachment against a president of the United States for only the third time in our history. Those articles charge President Donald John Trump with Abuse of Power and with Obstruction of Congress. The misconduct set out in those articles is the most serious ever charged against a president.

The first article, Abuse of Power, charges the President with soliciting a foreign power to help him cheat in the next U.S. presidential election. Moreover, it alleges and we will prove that he sought to coerce Ukraine into helping him cheat by withholding two official acts-- a meeting the new President of Ukraine desperately sought with President Trump at the White House to show the world, and the Russians in particular, that the Ukrainian president had a good relationship with his most important patron, the President of the United States.

And even more perniciously, President Trump illegally withheld almost $400 million in taxpayer funded military assistance to Ukraine, a nation at war with our Russian adversary, to compel Ukraine to help him cheat in the election. Astonishingly, the President’s trial brief, filed yesterday, contends that even if this conduct is proved, that there is nothing the House or this Senate may do about it.It is the President’s apparent belief that under Article II he can do whatever he wants, no matter how corrupt, outfitted in gaudy legal clothing.

And yet, when the Founders wrote the impeachment clause, they had precisely this type of conduct in mind, conduct that abuses the power of office for a personal benefit, that undermines our national security, and that invites foreign interference in the democratic process of an election. It is the trifecta of constitutional misconduct justifying impeachment.

In Article II, the President is charged with other misconduct that would likewise have alarmed the Founders: the full, complete, and absolute obstruction of a co-equal branch of government-- the Congress-- during the course of its impeachment investigation into the President’s own misconduct. This is every bit as destructive of our constitutional order as the misconduct charged in the first article.

If a President can obstruct his own investigation, if he can effectively nullify a power the Constitution gives solely to the Congress — indeed the ultimate power the Constitution gives-- to prevent Presidential misconduct, then the President places himself beyond accountability and above the law. Cannot be indicted, cannot be impeached. It makes him a monarch, the very evil against which our Constitution and the balance of powers it carefully laid out, was designed to guard against.

Shortly, the trial on these charges will begin, and when it has concluded, you will be asked to make several determinations:

Did the House prove that the President abused his power by seeking to coerce a foreign nation to help him cheat in the next election?

And did he obstruct the Congress in its investigation into his own misconduct by ordering his agencies and officers to refuse to cooperate in any away, to refuse to testify, to refuse to answer subpoenas for documents, and through every other means?

And if the House has proved its case, and we believe the evidence will not be seriously contested, you will have to answer at least one other critical question: Does the commission of these high crimes and misdemeanors require the conviction and removal of the President?

We believe that it does, and that the constitution requires that it be so, or the power of impeachment must be deemed a relic, or a casualty to partisan times, and the American people left unprotected against a president who would abuse his power for the very purpose of corrupting the only other method of accountability: our elections themselves.

And so, you will vote, to find the President guilty or not guilty, to find his conduct impeachable or not impeachable.

But I would submit to you that these are not the most important decisions you will make. How can that be? How can any decision you will make, be more important than guilt or innocence, than removing the President or not removing him?

I believe the most important decision is the one you will make today. The most important question is the question you must answer today: Will the President and the American people get a fair trial? Will there be a fair trial?

I submit that this is an even more important question than how you vote on guilt or innocence because whether we have a fair trial will determine whether you have a basis to render a fair and impartial verdict. It is foundational, the structure upon which every other decision you make will rest.

If you only get to see part of the evidence, if you only allow one side or the other a chance to present their full case, your verdict will be predetermined by the bias in the proceeding. If the defendant is not allowed to introduce evidence of his innocence, it’s not a fair trial. So too for the prosecution. If the House cannot call witnesses or introduce documents and evidence, it’s not a fair trial. It’s not really a trial at all.

Americans all over the country are watching us right now. Imagine they’re on jury duty. And imagine the judge tells the jury that she’s been talking to the defendant and at the defendant’s request, the judge has agreed not to let the prosecution call any witnesses. Or introduce any documents. The judge and the defendant have agreed that the prosecutor may only read to the jury the dry transcripts of testimony before the grand jury. That’s it. Has anyone ever heard a judge describe such a proceeding and call it a fair trial-- of course not. Of course not. That is not a trial, that is a mockery of a trial.

Under the Constitution, this proceeding, the one we are in right now, is the trial. This is not the appeal from a trial. You are not appellate court judges; ok, one of you is.

And unless this trial is going to be different from every other impeachment trial-- or any other kind of trial for that matter-- you must allow the prosecution and defense, the House Managers and the President’s lawyers, to call relevant witnesses. You must subpoena documents the President has blocked, but which bear on his guilt or innocence. You must impartially do justice as your oath requires.

So what does a fair trial look like in the context of impeachment? The short answer is, it looks like every other trial.

First, the resolution should allow the House Managers to obtain the documents that have been withheld. First, not last. Because the documents will inform the decision about which witnesses are most important to call. And when witnesses are called, the documentary evidence will be and must be available to question them with. Any other order makes no sense.

Next, the resolution should allow the House Managers to call their witnesses, then the President should be allowed to do the same and any rebuttal witnesses, and when the evidentiary portion of the trial ends, the parties argue the case. You deliberate and render a verdict. If there is a dispute as to whether a particular witness is relevant or material to the charges brought, under the Senate rules, the Chief Justice would rule on the issue of materiality.

Why should this trial be different from every other trial? The short answer is, it shouldn’t. But Leader McConnell’s resolution would turn the trial process on its head. His resolution requires the House to prove its case without witnesses, without documents, and only after its done, will such questions be entertained with no guarantee that any witnesses or any documents will be allowed even then. That process makes no sense.

So what is the harm of waiting until the end of the trial, of kicking the can down the road, on the question of documents and witnesses, besides the fact it is completely backwards, trial first, then evidence, and besides the fact that the documents will help inform the decision on witnesses, and help in their questioning?

The harm is this: you will not have any of the evidence the President continues to conceal throughout most-- or all-- of the trial and although the evidence against the President is already overwhelming you may never know the full scope of the President’s misconduct or that of those around him. And neither will the American people.

The charges here involve the sacrifice of our national security at home and abroad, and a threat to the integrity of our next election. If there are additional remedial steps that need to be taken after the President’s conviction, the American people need to know about it.

But if, as a public already jaded by experience has come to suspect, this resolution is merely the first step of an effort orchestrated by the White House to rush the trial, hide the evidence, and render a fast verdict or worse, a fast dismissal, to make the President’s problems go away as quickly as possible, to cover up his misdeeds, then the American people will be deprived of a fair trial and may never learn just how deep the corruption of the Administration goes or what other risks to our security and elections remain hidden.

The harm will also endure for this body. If the Senate allows the President to get away with such extensive obstruction, it will affect the Senate’s power of subpoena and oversight just as much as the House. The Senate’s ability to conduct oversight will be beholden to the desires of this President and future presidents—whether he or she decides they want to cooperate with a Senate investigation, or even another impeachment inquiry and trial. Our system of checks and balances will be broken. Presidents will become accountable to no one.

Now, it has been reported that Leader McConnell has already got the votes to pass this resolution, the text of which we did not see until last night. And they say Leader McConnell is a very good vote counter. Nonetheless, I hope that he is wrong. And not just because I think the process this resolution contemplates is backwards and designed with a result in mind, and that result is not a fair trial. I hope that he is wrong, because whatever Senators may have said, or pledged or committed, has been superseded by an event of constitutional dimension.

You have all now sworn an oath, not to each other, not to your legislative leadership, not to the Managers or even to the Chief Justice. You have sworn an oath to impartially administer justice. That oath binds you. That oath supersedes all else.

Many of you in the Senate and many of us in the House have made statements about the President’s conduct, or this trial, or this motion, or our expectations; none of that matters now. That is all in the past. Nothing matters now but the oath. Nothing matters now, but the impartial administration of justice. And that oath requires a fair trial, fair to the President and fair to the American people.

But is that really possible? Or, as the Founders feared, has factionalism, or an excess of partisanship made that impossible? One way to find out what a fair trial should look like devoid of partisan consideration, if to ask yourself how you would structure the trial if you did not know what party you were affiliated with, or whether the President was from your party or the other? Would it make sense to you to have the trial first and only then decide on witnesses and evidence? Would that be fair to both sides? I have to think that your answer would be no.

Let me be blunt, very blunt. Right now, a great many, perhaps even most Americans do not believe there will be a fair trial. They don’t believe the Senate will be impartial. They believe the result is pre-cooked.

The President will be acquitted, not because he is innocent, he is not, but because the Senators will vote by party and he has the votes. The votes to prevent the evidence from coming out, and the votes to make sure the public never sees it.

The American people want a fair trial, they want to believe their system of government is still capable of rising to the occasion.

They want to believe we can rise above party and do what’s best for the country, but a great many Americans don’t believe that will happen. Let’s prove them wrong. Let’s prove them wrong.

How? By convicting the President? No, not by conviction alone. By convicting him if the House proves its case, and only if the House proves its case. But by letting the House prove its case. By letting the House call witnesses. By letting the House obtain documents. By letting the House decide how to present its own case, and not deciding it for us.

In sum, by agreeing to a fair trial.