McConnell Impeachment Rules Modify Clinton Precedent
“The Senate Republican leader proposed impeachment trial rules that push the 1999 precedent toward President Trump’s preferences.
WASHINGTON — For weeks, Senator Mitch McConnell sought to deflect charges that he was trying to stack the deck in favor of President Trump in his impeachment trial by repeating that he was merely replicating the Senate’s only modern precedent: the 1999 trial of President Bill Clinton.
“What was good enough for President Clinton in an impeachment trial should have been good enough for President Trump,” he told reporters this month, as Democrats pressed him to include a new guarantee for witnesses and documents. “And all we are doing here is saying we are going to get started in exactly the same way that 100 senators agreed to 20 years ago.”
But when Mr. McConnell, Republican of Kentucky and the majority leader, finally released a draft of his resolution on Monday evening, less than 24 hours before the Senate was expected to consider it, there were several meaningful differences from the rules that governed Mr. Clinton’s impeachment, some of which were in line with Mr. Trump’s preferences and his legal team’s strategy.
The measure is expected to pass on Tuesday along party lines, over strenuous Democratic objections. Here is a look at the similarities and differences.
A trial running on fast-forward.
While Mr. McConnell proposes that the trial unfold in a similar sequence to the 1999 one — opening statements, then questions from senators, then an up-or-down vote on whether to consider calling witnesses or new evidence — his plan would speed up the proceedings.
Like in the Clinton trial, the Democratic House impeachment managers and Mr. Trump’s defense lawyers will have up to 24 hours to argue their respective cases for and against conviction on charges of abuse of power and obstruction of Congress. But in 1999, the Senate imposed no additional limit on how the time was used. Mr. McConnell’s proposal states that each side much complete its work within two days, beginning as early as Wednesday.
That means opening arguments could be finished by the end of this week, allowing the senators 16 hours for questioning and a subsequent debate early next week over whether to consider witness testimony. In the fastest possible scenario, the Senate could vote to convict or acquit by the end of January.
Aides for Mr. McConnell played down the differences, arguing that he had never meant to say the Trump rules would be identical to the Clinton ones, but would deal with opening arguments and consideration of witnesses in the same order.
But Senate Democrats were not pleased, and their leader, Senator Chuck Schumer of New York, accused Mr. McConnell of trying to push the proceedings into “the wee hours of the night” to hide a damaging case against Mr. Trump. Mr. Schumer said he would offer a series of amendments on Tuesday “to address the many flaws in this deeply unfair proposal.”
The White House, which has worked closely with Mr. McConnell on the trial’s parameters, indicated it was pleased. Eric Ueland, the president’s congressional liaison, said the team was “gratified that the draft resolution protects the president’s rights to a fair trial.”
The House’s findings would not automatically be admitted into evidence.
When the Clinton trial opened, the Senate “admitted into evidence,” printed and shared with senators all records generated by the House impeachment inquiry into Mr. Clinton. Not so this time.
Though the House’s evidence from the Trump impeachment inquiry would still be printed and shared with senators, it would only be formally considered by the Senate as part of its official record if a majority of senators voted to do so. That vote could only take place after the Senate decided whether to call witnesses and seek additional documents — that is, as the trial moves toward conclusion.
A senior Republican aide in the Senate said the change reflected a fundamental difference in the Clinton and Trump cases. In the Clinton case, the House’s evidentiary record largely consisted of materials compiled by Ken Starr, the independent counsel.
This time, House Democrats conducted their impeachment inquiry entirely themselves, without the benefit of a Justice Department investigation. The aide, speaking on the condition of anonymity to detail internal strategy, argued that in doing so, the House had denied Mr. Trump proper due process rights afforded to Mr. Clinton, suggesting the current president was not given a chance to contest the House’s record.
The House invited Mr. Trump to mount a defense before the Judiciary Committee during its impeachment proceeding, including requesting witnesses and documents, but the president’s legal team declined, saying it would not dignify an inquiry it deemed illegitimate with a response.
By not admitting the House impeachment inquiry’s findings into evidence at the outset, Mr. McConnell, too, is in effect treating them as illegitimate.
As McConnell said, the resolution does not guarantee the trial will include witnesses.
As expected, the draft resolution does not incorporate Democratic demands that the trial guarantee witness testimony or requests for new documents. This was also the case in the Clinton trial, but Mr. McConnell’s proposal still differs slightly.
It says that after senators conclude their questioning, they will not immediately entertain motions to call individual witnesses or documents. Instead, they will decide first whether they want to consider new evidence at all. Only if a majority of senators agree to do so will the managers and prosecutors be allowed to propose and argue for specific witnesses or documents, each of which would then be subject to an additional vote.
If a majority of the Senate ultimately did vote to call a witness for testimony, that witness would first be interviewed behind closed doors and then the “Senate shall decide after deposition which witnesses shall testify, pursuant to the impeachment rules,” if any. Consistent with the Clinton trial rules, this essentially means that even if witnesses are called, they might never testify in public.
Democrats said Mr. McConnell’s intentions were clear.
“Under this resolution, Senator McConnell is saying he doesn’t want to hear any of the existing evidence, and he doesn’t want to hear any new evidence,” Mr. Schumer said. “It’s a cover-up.”
But Mr. McConnell appeared to have the votes he needed to move the resolution without Democrats. Minutes after the resolution was shared with reporters, a key moderate Republican who had been pushing the leader to ensure a vote on whether or not to call witnesses, Senator Lamar Alexander of Tennessee, said he would be a yes.
And Senator Mitt Romney of Utah, another possible swing vote who favors calling witnesses, said the resolution met his requirements and tracked “closely with the rules package approved 100 to 0 during the Clinton trial.”
What about a motion to dismiss the case?
Mr. McConnell’s resolution does not include a guarantee that the Senate will vote on a motion to dismiss the case after opening arguments and senatorial questions rather than see the trial to its full conclusion. That guarantee was included in the Clinton-era rules in deference to Senator Robert C. Byrd of West Virginia, a towering figure in the chamber at the time.
Individual senators or Mr. Trump’s lawyers could still make a motion during the trial to force a dismissal vote — an idea Mr. Trump has said he likes.
But Republican leaders believe doing so is unwise. With moderates committed to seeing the trial through, it risks dividing the party on a key vote, and in any case, they have argued it will be better for Mr. Trump in the long-run to have a Senate acquittal to his name.
Nicholas Fandos is a national reporter based in the Washington bureau. He has covered Congress since 2017 and is part of a team of reporters who have chronicled investigations by the Justice Department and Congress into President Trump and his administration.” @npfandos
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