How Will the Senate Get Away With Its Sham Trial Now?

By Dahlia Lithwick, Slate

17 January 20

As more evidence pours out, Mitch McConnell’s position becomes increasingly untenable.

enate Majority Leader Mitch McConnell doesn’t much care about fairness or process. He cares about winning. But he likes to win by citing fairness and process. He thinks that’s clever. He assumes, not incorrectly, having suffered no repercussions for blocking Merrick Garland from a hearing or a vote for the 2016 vacancy at the Supreme Court, that most Americans don’t have the bandwidth or attention span for arcane Senate processes and procedures. And he suspects, not incorrectly, that so long as he razzle-dazzles them with senatorial process bullshit, concerns about justice will naturally rinse out with the next news cycle. He simply says, “They started it,” and nobody bothers to find out if that’s true. 

Interestingly, with an impeachment trial in the Senate raising the stakes perhaps even higher than those for a Supreme Court vacancy, McConnell committed a rare unforced error before Christmas: He proclaimed that Senate Republicans would “be working through this process hopefully in a fairly short period of time, in total coordination with the White House counsel’s office and the people who are representing the president.” This essentially amounts to a confession he’d be rigging up a show trial to acquit the president without hearing any material evidence—not exactly what that whole “trial” mechanism is meant to do, legally speaking. Perhaps as a result of that unfortunate admission, McConnell now has to contend with at least a handful of vulnerable Republicans in the Senate who are not perfectly cool with the “we’re coordinating with Trump to get him acquitted super fast” situation. And as such, we enter this historic week of Senate impeachment with at least the wisp of a hope that there might be a fairer trial ahead than anyone could have anticipated. 

That slim hope nests in a variety of cozy places, including but not limited to the prospect that Chief Justice John Roberts has some institutional interests in avoiding a kangaroo trial, the fact that the American public has shown some bipartisan interest in hearing actual testimony from actual witnesses, and the fact that the president appears to continue to conflate his personal political ambitions with the national interest, even after being impeached for precisely that conduct in the House. (Maybe this will finally prove to be too much for even the most casual observer?) Plus, newly released documents from Rudy Giuliani’s indicted Ukraine-gate confederate, Lev Parnas, again confirm that the rough contours of the aid-for-oppo research scheme. But they go even further: The new documents (with more to come) add elements of actual threats to the welfare of a sitting U.S. ambassador, directed by the associates of Trump’s associates, which has implications for Jay Sekulow, Trump’s personal lawyer. Senate Republicans will need to explain why none of this matters and why they want to know nothing more about the back deals and thuggery that, it is now clearer than ever, were conducted under the president’s directive. That means that there is at least a smidgen of hope wafting off senators like Mitt Romney of Utah, who says he’d like to hear testimony from John Bolton, and Susan Collins of Maine, who says she is possibly open to impeachment witnesses and documents, all of which makes it trickier for McConnell to magic up his dream trial of opening statements leading to closing statements leading to a brisk victory lap-slash-acquittal. 

Now before any of us get too starry-eyed about the prospect of Susan Collins swooping in to save the day, it’s best to recall that—as was the case in the Brett Kavanaugh confirmation “hearing”— her interests lie not in finding out the truth, but in crafting a procedure that has enough earmarks of truth-seeking to let her get away with voting how she wants to while also looking fair-minded. 

Indeed, it’s helpful to stipulate right upfront that none of the so-called wild card Republican senators is really and truly interested in hearing from Mick Mulvaney or John Bolton or Rudy Giuliani, thus potentially eliciting yet more evidence that the president did the thing virtually every witness in the House impeachment hearings already testified that he did. What they want, just as they wanted during the Kavanaugh hearings, is a technical investigatory process that the mainstream press won’t scoff at as completely skewed. In the case of the Kavanaugh hearings, the idea to have a legitimately truth-seeking process did lead to some explosive testimony—notably the painstaking account from Christine Blasey Ford of an alleged sexual assault—which was quickly papered over with a secretive FBI investigation that gave cover to enough senators to allow McConnell to call the vote. In the case of a Senate impeachment trial, vulnerable Republicans won’t be able to hide behind an investigation constrained by the White House and later revealed, long after the swearing-in, to have deliberately avoided probing pertinent evidence. And while Collins and her ragtag band of highly concerned confederates in the Senate might try to hide behind a silly process fix like only voting on hearing witnesses after opening statements, it’s not yet clear that they can pull off the nothing-to-see-here move later, if they aren’t able to pull it off now. 

That’s not to say they aren’t trying. Susan Collins, confronted with the possibility that the president’s lawyer was deeply implicated, in his capacity as a personal campaign attorney, in a scheme to hijack foreign policy to screw over Joe Biden, now sniffs out a half-formed process argument: 

It’s too late to investigate Parnas’ new evidence, she contends. Democrats should have put it into the record before the Senate trial (i.e., before they had it). Sorry folks, we just want a fair process, and witnesses and evidence revealing the truth would seriously impede that inquiry. Similarly, Sen. Marco Rubio recently tweeted that the “testimony & evidence considered in a Senate impeachment trial should be the same testimony & evidence the House relied upon when they passed the Articles of Impeachment.” That’s incorrect as a matter of plain text, long- standing constitutional history and also, um, basic logic. It’s also an effort to use numbing process to bore us out of having to consider known and discoverable facts. 

Unfortunately for McConnell, he has the additional problem of wrangling the lunatic fringe of his party, where senators such as Rand Paul and Ted Cruz are insisting that, if witnesses are to be called, Joe and Hunter Biden really need to testify as well. That sets up the kind of clown-car spectacle that Roberts—who would prefer to participate in this Senate trial from behind a bulletproof screen—would perhaps be moved to nip in the bud. The only real question, then, for McConnell, is what kind of process he might put into place that would allow Susan Collins and Mitt Romney to vote to acquit without embarrassing themselves, without unleashing potential catastrophe by allowing unnecessary and absurd witnesses into the mix. Wrangling a show comprised of Lindsey Graham on the sycophancy and Rudy Giuliani playing the dumpster fires is just not going to be as simple as saying no to a very polite Merrick Garland and Obama jazz duo. 

Quinta Jurecic and Ben Wittes argue persuasively at the Atlantic that in fact nothing about the impeachment trial in the Senate will be interesting, precisely because it’s not in anyone’s interest to be interesting, and also because everything Trump does around impeachment is now rote and predictable and boring. It’s useful to remind ourselves that “process is boring” is the enemy here—that as soon as one opens the door to “boring” or her snoozy cousin “Senate procedures,” you can be certain that the real outrages will buried in rules and footnotes and claims about what’s happened in prior arcane Senate processes, even as we try to process breaking news about the United States president possibly permitting a thug to intimidate his own ambassador. This impeachment story is not boring, but it has gone on a long while and is comprised of many facts, which might have been the fatal flaw of both Mueller’s report and his subsequent testimony, even while both were incredibly damning if you were applying pre-2016 objective-universe standards. 

Here is a strange problem I have observed: Hiding behind boring process as a defense seems to favor only Republicans. When Garland faced a roadblock in the Senate, Democrats made Senate process arguments while Republicans did the Electric Slide. Democratic voters found it boring and tuned out. But when Jim Jordan and Mark Meadows, confronted with deeply troubling facts and witnesses around the Ukraine scandal, made exclusively process arguments about witnesses locked in basements and wanting to subpoena a whistleblower, Republican voters tuned in and rallied. 

But aiding and abetting presidential obstruction and abuse of power isn’t a process problem, even if arrives at the Senate wearing sensible shoes. It’s collusion. It’s a non-process rigged to look like a process. That isn’t boring. It’s grotesque. And it only works if we believe it. Let’s not.