Speaker of the House Nancy Pelosi has, once again, revealed herself to be a devastating wartime tactician. She has put the country in the best possible position to see Donald J. Trump, criminal president of the United States, brought to justice. She has done this over the doubts of some progressive commentators (myself included), the squeamishness of moderates in her own party, and over the objection of Trump’s Republican Party.
Next week, the Republican empire strikes back.
Donald Trump is “impeached forever.” There is now nothing Senate majority leader Mitch McConnell or Senate Republicans can do to save Trump’s legacy. On Tuesday, the Republicans will start the hard work of saving Trump’s job. Why they want to do this is an issue for criminologists and future historians trying to explain the demise of the Republican Party. How they will try to do this is an issue for our times.
Let’s first dispense with the notion that anything we see next week will have anything in common with a “trial.” In a real trial, a judge is empowered to enforce rules of decorum and engagement in keeping with American traditions of justice and fairness. In impeachment trials, the majority of the Senate sets the rules, enforces the rules, and can vote on whether the rules have been violated. If a majority of the Senate called for “trial by combat,” there’s nothing, constitutionally speaking, to stop them.
A real trial also features an impartial judge or jury. Thursday, the senators swore an oath to “do impartial justice.” But also on Thursday, Republican Senator Martha McSally sneered at a reporter from CNN, calling him a “liberal hack” for asking McSally if she would consider new evidence against Trump provided by Lev Parnas. Republicans couldn’t even pretend to be impartial on the day they promised to be. They’re not going to go home for the weekend, stream Pinocchio, and come back determined to be “real” senators.
Next week, the only limit to Mitch McConnell’s power will be what a physical majority of the Senate is willing to go along with.
Pelosi has made it as hard as possible for McConnell to maintain the 51 votes he needs to do whatever he wants. By refusing to transmit the articles of impeachment for as long as she possibly could, Pelosi created time for Republicans to waver. She gave time for additional evidence to be brought to bear against the president. It now appears that McConnell does not have the votes to dismiss the case against Trump outright. It’s even possible that he doesn’t have enough votes to prevent the calling of witnesses.
Democrats want to subpoena at least four additional witnesses for the Senate trial—witnesses that the Trump administration blocked from appearing during the investigation phase in the House: Acting Chief of Staff Mick Mulvaney, former national security adviser john Bolton, Associate Director of National Security Michael Duffey, and Mulvaney assistant Robert Blair.
And something tells me Democrats wouldn’t mind extending an invitation to Lev Parnas as well.
Republicans are running out of ways to stop this from happening. According to a Quinnipiac poll, 66 percent of Americans want to hear at least Bolton testify. That poll was taken before the Parnas media blitz, during which he implicated everybody but Colonel Sanders in the scheme to get a foreign government to influence an American election. Senators Ted Cruz and Rand Paul seem so fatalistic about the prospect of witnesses that they’ve resorted to threatening Democrats and even fellow Republicans with the demand that there must be “witness reciprocity.” If people with direct knowledge of Trump’s alleged crimes are called, Cruz and Paul want to be able to give additional life to right-wing conspiracy theories and subpoena Hunter Biden.
I would trade Hunter Biden, Joe Biden, and an entire Acela car full of puppies and Care Bears for Bolton and Mulvaney. The “reciprocity” plan reeks of desperation from a Republican Party too used to Democrats’ being afraid of their own shadows.
Should witnesses be called, Pelosi is ready. Her choice of impeachment managers shows she’s expecting witnesses to be called and cross-examinations to be taken. If Pelosi really thought the Senate proceedings were just for show, she’d have put her best show ponies forward. You’d have seen forceful speakers like Eric Swalwell and constitutional theorists like Jamie Raskin. You might have seen Justin Amash for his “bipartisan” appeal, or Rashida Tlaib for her early (and very outspoken) impeachment zeal.
Instead, you saw a comparatively less famous slate, but one full of actual courtroom experience. Pelosi tapped white-collar litigator (and Army Ranger) Jason Crow, former police chief Val Demings, former judge Sylvia Garcia, and former litigator for Viacom and CBS Hakeem Jeffries, to go along with Adam Schiff, Jerry Nadler, and Zoe Lofgren.
That’s not the slate you pick to go on cable; that’s a slate you pick to go to court. And it still has the kind of regional, gender, and racial diversity you should demand from the modern Democratic Party.
In contrast, Trump just named his team of representatives. In addition to longtime personal lawyer Jay Sekulow and White House counsel Cipollone, Trump named Alan Dershowitz, Pam Bondi, and former Bill Clinton prosecutors Ken Starr and Robert Ray. Those are the lawyers you pick to go talk about you on television while you sit in jail waiting for your trial to start.
But like I said, this isn’t a real trial. And if Mitch McConnell can’t make it a pure show, he’s going to make it a lawless brawl. In the fight to obstruct the proper functioning of American democracy, McConnell is functionally undefeated.
McConnell is already toying with obscuring parts of the proceedings by refusing to let C-SPAN use its cameras to cover the gavel-to-gavel event. While McConnell might be forced by the sheer demands of the American public to call witnesses, the public does not seem as interested in forcing the Senate to subpoena the documents the Trump administration has thus far refused to hand over.
The template for the impeachment trial might be the Brett Kavanaugh confirmation hearings. You’ll remember that after the defection of then-Senator Jeff Flake, McConnnell was forced to allow time for an investigation into claims that Kavanaugh was an attempted rapist. You’ll also remember just what that “investigation” amounted to: a perfunctory week during which the FBI investigated no additional claims against Kavanaugh, his friends were not hauled in to testify, and witnesses who called the FBI to share their testimony about Kavanaugh were not even called back.
You’ll remember that 50 senators voted to confirm Brett Kavanaugh anyway.
Republicans are not looking for the truth; they’re looking for cover. If calling witnesses makes it easier for them to acquit Donald Trump, they will. If not calling witnesses will make it easier for them to acquit Donald Trump, they will.
Nancy Pelosi and the House Democrats have played their hand brilliantly. But next week, Mitch McConnell is holding all the cards.