The McConnell Rules: a criminal cover-up by Republicans in the Senate (Updated)

At the eleventh hour, “The Enemy of The People,” Senate Majority Leader Mitch McConnell issued his rules for the Senate impeachment trial — the rules were not negotiated with Senate Democrats, but they were done in “total coordination” with the Defendant in the White House — which depart significantly from the “Clinton Rules” of impeachment in 1999.

NPR reports, McConnell Lays Out Plan For Senate Impeachment Trial Procedure:

On the eve of arguments in President Trump’s historic impeachment trial, Senate Majority Leader Mitch McConnell has revealed his long-awaited resolution setting the initial parameters for how the process will play out.

Democrats are already slamming the four-page resolution, which they say will place time limits on arguments, and departs heavily from President Clinton’s impeachment trial of 1999.

Read the resolution here.

The McConnell resolution allows the House impeachment managers and president’s lawyers to present their opening arguments beginning Wednesday at 1 p.m., and gives them 24 hours each over two days to make their case. (Late Monday, the White House announced that eight House Republicans would join the president’s defense team: Representatives Doug Collins, Mike Johnson, Jim Jordan, Debbie Lesko, Mark Meadows, John Ratcliffe, Elise Stefanik and Lee Zeldin. They will be advisers, but not participate in floor arguments in the Senate.)

Following those arguments, senators will have 16 hours to ask questions in the chamber, followed by two hours of arguments each by the House impeachment managers and the president’s lawyers. This would be followed by deliberation on a question of whether to subpoena witnesses or documents.

It would also allow an option for a motion to dismiss the case outright immediately after the resolution is adopted — something the President has demanded. It’s unlikely, however, that such a motion would have the Republican votes needed to pass it.

At least one major difference from the Clinton process has caught the eye of Democrats: The resolution cuts short the number of days each side can make arguments in the case. Rather than allow 24 hours of arguments that could extend over three days as was the case for Clinton, McConnell’s resolution shortens the number of days to two.

Democrats argue that would leave them arguing their case into the middle of the night and into the next morning, pushing the debate to the “dead of night,” a Democratic aide working on the trial said.

Carl Bernstein, the famed Watergate reporter, called McConnell “Midnight Mitch” during a panel discussion on CNN’s “Anderson Cooper 360°” on Monday. It centered on McConnell’s proposed compressed schedule for President Donald Trump’s imminent Senate impeachment trial over the Ukraine scandal that would see some testimony taking place in the early hours. Carl Bernstein Hits Mitch McConnell With Scathing New Nickname That Explodes On Twitter:

Said Bernstein:

The most important moment for the Republican Party since the censure of Joe McCarthy and the impeachment and resignation of Richard Nixon, in which Republicans became great heroes and patriots. Now, we’re looking at ‘Midnight Mitch’ and the so-called world’s greatest deliberative body really embracing a cover-up that is there for all to see. That’s what this is about. It’s about preventing information from becoming known and seen by the American public.

Even more disturbing:

Democrats also object to the wording of the section pertaining to votes to call new witnesses before the Senate. The rule includes a new hurdle before votes on witnesses and documents can occur: A majority of senators would have to agree to the concept of allowing witnesses and documents before they could vote on the individual pieces of evidence.

Schumer argues that the resolution could also prevent the Senate and the American people from learning the full scope of claims against the president. For example, it doesn’t admit the House record into evidence at the trial, he said. McConnell’s resolution only allows that senators may offer the evidence, meaning all of the findings from the House process could be subject to majority vote, according to senior Democratic aides.

This holds forth the prospect that none of the evidence forwarded by the House to Senate will be admitted into evidence in the record, let alone any new witnesses or evidence. (More about this below).

McConnell is going to force his “Criminal Coverup Caucus” to vote on each individual piece of evidence to test their loyalty to their “Dear Leader.” The so-called moderate Republicans who have expressed openness to voting to hear from new witnesses will now have to take multiple votes on admitting evidence from the House, which allows pressure to be exerted on them from Fox News aka Trump TV and MAGA cult followers. These are not Senators who have ever demonstrated any strength of convictions or courage in the past. They would have to abandon their party leadership to honor their oath of office, and the special impeachment oath they took. I’m not optimistic.

“After reading his resolution, it’s clear Senator McConnell is hell-bent on making it much more difficult to get witnesses and documents and intent on rushing the trial through,” Senate Minority Leader Chuck Schumer, D-N.Y., said in a statement. “On something as important as impeachment, Senator McConnell’s resolution is nothing short of a national disgrace.”

Schumer said he’ll be offering amendments as a result.

“Any senator that votes for the McConnell resolution will be voting to hide information and evidence from the American people,” he said.

The first test for the so-called moderate Republicans will come on amendments today: “on the process for amendments Tuesday, Democrats say they expect to offer several amendments.”

McConnell needs at least 51 of the 53 Senate Republicans to support his rules if he wants them to pass. Any senator can attempt to change the rules by offering an amendment before the vote to approve the measure. Those amendments also need 51 votes, meaning all 47 Democrats need to recruit four Republicans if they hope to change any element of McConnell’s plan.

The fix may be in for a rigged trial by the end of the day.

Margaret Taylor explains at Lawfare blog, The First Test for Chief Justice Roberts? McConnell’s Organizing Resolution for Impeachment (excerpts):

The House voted on the two articles of impeachment on Dec. 19 and voted on Jan. 15 to transmit them to the Senate. In the meantime, documents and statements from Lev Parnas—the indicted associate of Trump’s lawyer and fixer Rudy Giuliani—were released, implicating the president directly in efforts to obtain dirt on and investigations of the Bidens. In early January, the New York Times reported on behind-the-scenes consternation and haggling of executive branch officials over the legal consequences of the president’s decision to hold back $391 million worth of military assistance the Ukrainian military needed in its fight against Russian-backed separatists. That reporting, and related revelations concerning communications between the White House’s Office of Management and Budget (OMB) and the Pentagon, makes clear that the decision to withhold the aid came from the president himself. And on Jan. 16, the Government Accountability Office (GAO) issued a legal decision finding that OMB violated the Impoundment Control Act when it withheld from obligation the portion of Ukraine assistance funds appropriated to the Department of Defense.

But will senators get to consider any of this during the trial itself? The Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials do not directly address the issue of new evidence or new testimony. Rather, they simply provide that the House managers present their case, that the president or his counsel respond, and that the presiding officer (in this case, Roberts):

may rule on all questions of evidence including, but not limited to, questions of relevancy, materiality, and redundancy of evidence and incidental questions, which ruling shall stand as the judgment of the Senate, unless some member of the Senate shall ask that a formal vote be taken thereon, in which case it shall be submitted to the Senate for decision without debate; or he may at his option, in the first instance, submit any such question to a vote of the members of the Senate. Upon all such questions the vote shall be taken in accordance with the Standing Rules of the Senate.

So imagine that, as part of their case, the House managers seek to present new information obtained since the articles of impeachment were passed in the House. It would appear that under these rules, it would be up to the president’s defense counsel to object to evidence presented or testimony sought by the House managers. It would then be up to Chief Justice Roberts to decide how to handle it, and his decision could be overruled by the senators themselves.

If Senate Majority Leader Mitch McConnell has his way, no new evidence would be allowed. One question that will arise—as early as Tuesday—is whether Roberts agrees and how, exactly, he will handle the issue as the presiding officer.

* * *

The Clinton resolution stated that “[t]he presentation [by the House managers] shall be limited to argument from the record” (emphasis added). [As noted above, the McConnell Rules do not admit the House record into evidence at the trial.] Thereafter, the president’s defense team presentation must be “with reference to the House presentation.” Senators then had an opportunity to question the parties via written submissions to the chief justice. Only after these phases were complete was it in order to make a motion to dismiss, as outlined by the impeachment rules, or a motion to subpoena witnesses and to present any evidence “not in the record.”

So if McConnell is able to pass an analogous resolution, the House managers would be prohibited from presenting new evidence. [Or, under the McConnell Rules, from presenting any evidence.] And the Senate majority leader has indicated he has 51 Republican votes to pass his resolution. But there is a question of whether such a resolution alters the existing Senate rules regarding impeachments. Normally 67 votes would be required to invoke cloture on debate—halting any filibustering and forcing senators to a vote—on a proposal to change the Senate rules.

This was not a live issue back in 1999, because the organizing resolution was agreed to unanimously. This time around, as Ed Kilgore points out, Democrats may argue that McConnell is trying to amend the rules and seek to force a vote at the 67-vote threshold. On the one hand, the resolution is not literally making amendments to the rules, and the Senate’s record of the vote on the 1999 resolution indicates it needed only 51 votes to succeed. But clearly, on a substantive level, such terms alter and constrain the bare-bones format laid out in the existing rules.

Here’s how this might play out: McConnell would introduce the organizing resolution and seek to pass it with 51 votes. If efforts to amend the resolution are unsuccessful, a Democratic senator would then make a point of order on the basis that 67 votes are required. And it would then be up to Roberts to rule on the point of order—presumably with the advice of the Senate parliamentarian, who will be at his side throughout the trial.

How Roberts handles this issue will likely be the first glimpse of what we can expect from Roberts in the trial going forward. He could rule with vigor—or timidity. Senators could accept the ruling—or any one senator could ask for a formal vote. Alternatively, Roberts could put the vote to members of the Senate without making a ruling or recommendation.

There has been a great deal of speculation on what role Roberts intends to play in the Senate trial. Will he engage actively, like Chief Justice Salmon Chase in the impeachment trial of Andrew Johnson, or will he largely sit back and let the Senate do as it wishes, like Chief Justice William Rehnquist during Bill Clinton’s trial? Perhaps, thanks to McConnell, we may have an answer to that question as soon as the trial begins.

All of these questions about what the rules for the trial will be will be answered by late today.

UPDATE: Oh, poor Mitch. At a lunchtime meeting with his GOP caucus, Sens. Susan Collins (Maine), Rob Portman (Ohio) and others ate his lunch, forcing him to make changes to the McConnell Rules for the impeachment tiral. Schumer hails McConnell’s concessions on trial rules but says witnesses is bigger issue:

McConnell made two last-minute changes to the draft of the organizing resolution he circulated Monday evening, which Schumer had slammed before the trial as “nothing short of a national disgrace.”

The GOP leader agreed to give House prosecutors more time to make their opening arguments — three days instead of two days — and added language to allow evidence compiled in the House impeachment inquiry to be automatically submitted into the Senate’s trial record.

He made the changes after getting pushback from moderate Republicans, including Sens. Susan Collins (Maine) and Rob Portman (Ohio), at a lunch meeting Tuesday afternoon.

“Senator Collins and others raised concerns about the 24 hours of opening statements in 2 days and the admission of the House transcript in the record,” Annie Clark, a spokeswoman for Collins said.

“Her position has been that the trial should follow the Clinton model as much as possible. She thinks these changes are a significant improvement,” the aide added.

* * *

Senate Democratic Leader Charles Schumer (N.Y.) on Tuesday hailed two concessions Senate Majority Leader Mitch McConnell (R-Ky.) made on the resolution setting the rules for President Trump’s impeachment trial, arguing it shows the GOP leader is feeling political heat.

“The public is understanding how unfair Senator McConnell’s trial rules are and Republican Senators are beginning to tell him to change them. The real test will be if they pressure Senator McConnell to allow witnesses and documents,” Schumer said in a statement.

Separately, Schumer told reporters, “The pressure that we have put on them and on Republican senators has gotten them to change.”

UPDATE: White House counsel Pat Cipollone, standing before the Senate and Chief Justice John Roberts during the opening of the impeachment trial of President Donald Trump, told the chamber that Republicans were barred from attending depositions of witnesses in the House. As transcripts show, there were Republicans asking questions of the witnesses at the depositions.

Wow. He couldn’t even get through the first day without violating the Model Rules of Professional Conduct, Rule 3.3: Candor Toward the Tribunal:

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;