As the second session of the 116th Congress got underway on Friday, the biggest question on Congress’ plate at the start of 2020—how a Senate impeachment trial of President Donald Trump might be conducted and when it will even happen—moved no closer to a resolution. That’s a good thing—for now.
On Friday morning, Senate Majority Leader Mitch McConnell indicated that he had no plans of acceding to Democratic leaders’ demands that a Senate trial include witnesses and document production, as past impeachment trials did. “About this fantasy that the speaker of the House will get to hand-design the trial proceedings in the Senate, that’s obviously a nonstarter,” McConnell said on the floor of the Senate. He also suggested that he was fine with an indefinite stalemate. “We can’t hold a trial without the articles,” McConnell said. “The Senate’s own rules don’t provide for that. So, for now, we’re content to continue the ordinary business of the Senate while House Democrats continue to flounder.”
But House Speaker Nancy Pelosi refused to blink. Before Christmas, she pledged not to transmit impeachment articles until she knew what the rules of a Senate trial would be. Pelosi suggested on Friday afternoon that the ball was in McConnell’s court. “The GOP Senate must immediately proceed in a manner worthy of the Constitution and in light of the gravity of the president’s unprecedented abuses,” Pelosi said.
Neither side has any reason to budge at this point. McConnell does not want to force the more vulnerable members of his caucus to vote for the unpopular proposition to bar witnesses from the Senate trial when there is still a possibility that new information could come to light while Pelosi withholds the articles. So, it doesn’t make sense for him to announce and hold a vote on an official plan on new impeachment rules before it is certain that Pelosi will actually send them over.
Pelosi and Senate Minority Leader Chuck Schumer, meanwhile, are hoping that new information will trickle out to increase pressure on vulnerable Republican members in the Senate to support a trial that includes witnesses and document production, as in all past impeachments. Indeed, in his own remarks on the Senate floor on Friday, Schumer cited a trio of news developments over the winter break that would support his call for specific witnesses and document production. Those developments were the administration’s production of heavily redacted documents in response to a Freedom of Information Act request regarding its decision to withhold military aid from Ukraine while the president pressed that country to investigate his political rivals, a report in the New York Times about how senior officials argued for releasing the aid to no avail, and a report in Just Security showing that as late as the end of August orders for the hold came directly from the president.
“Each new revelation mounts additional pressure on the members of this chamber to seek the whole truth,” Schumer said.
Pelosi echoed this argument in her own statement. “Leader McConnell is doubling down on his violation of his oath, even after the exposure of new, deeply incriminating documents this week which provide further evidence of what we know: President Trump abused the power of his office for personal, political gain,” Pelosi said.
There are still several shoes that could drop before an impeachment trial, if the current impasse continues. The federal courts are still resolving efforts to enforce subpoenas in the House investigations into Trump. Even if McConnell agrees to call witnesses, they might not even appear without some sign from the courts that they have to. The U.S. Circuit Court for the District of Columbia heard two of these cases on Friday. One case revolved around an effort to enforce a lower court ruling ordering the production of grand jury materials from the Mueller investigation to the House Judiciary Committee. The other case revolved around an effort to enforce a lower court ruling demanding that former White House Counsel Don McGahn come before Congress to testify about the potential obstruction of justice that was documented in the Mueller report. If McGahn was forced to testify, it could give House investigators the ammunition they need to compel testimony from the key figures in the Ukraine matter or pressure the Senate to do so itself.
But after Friday’s oral arguments, it seems like Pelosi shouldn’t bank on that outcome. While the panel hearing the case—which includes two Republican-appointed judges and one Democratic appointee—seemed skeptical of the Department of Justice’s position that top aides to the president were absolutely immune from testimony, it also seemed uncomfortable weighing into a political debate between two separate branches of government.
“In place of the court coming in and picking a winner or loser, the nation’s history has been negotiation, compromise, accommodation,” Judge Thomas B. Griffith said. “It’s messy. It takes time. It involves all these tools that you can’t use in the courts. But that’s what the separation of powers means.”
Griffith, a George W. Bush appointee, might be the key vote on the panel. Judge Judith Rogers, a Bill Clinton appointee, indicated that she leaned toward enforcing the subpoena. Judge Karen Henderson, a George H.W. Bush appointee, did not tip her hand either way but recently joined two Trump-appointed judges to dissent from an opinion of the full D.C. Circuit to decline an en banc hearing in a case where the panel had ruled that Trump’s former accounting firm must turn over key financial documents to Congress. The biggest indication that Griffith, who voted with the majority in favor of production in that Trump financial records case, might rule against the administration came when he acknowledged the unprecedented nature of the administration’s resistance to the impeachment inquiry.
“Has there ever been an instance of such broad-scale defiance of a congressional request for information in the history of the Republic? Has there ever been anything like this?” Griffith asked DOJ attorney Hashim Mooppan. “An instruction has been given from the president of the United States not to cooperate in any form or fashion with an inquiry. Has that ever happened before?”
“Not to my knowledge,” acknowledged Mooppan, before arguing that the president would say that the reason for the noncooperation is because Congress’ investigation is illegitimate.
Griffith did not seem fond of that argument, but he also did not seem eager to weigh into a dispute between two other political branches. It may, then, be months before the question of impeachment witnesses is resolved.
Still, part of Pelosi’s calculus to continue the delay may also have to do with the president’s response to the current state of affairs: Even if McConnell appears fine with the status quo, Trump is clearly displeased with it. During the break, Trump went on several angry Twitter rants against Pelosi for her decision to hold back the charges. He has indicated that he wants to get a trial over with, so that he can tout an acquittal by the Republican Senate in a campaign year. Holding back charges may also have a deterrent effect. Trump held his infamous phone call with President Volodymyr Zelensky, in which he demanded investigations of Joe Biden and the Democratic National Committee, just one day after special counsel Robert Mueller testified before Congress, marking an end to his inquiry. While Trump does not appear to have much in the way of impulse control, he at least understands when he’s being watched. Holding impeachment articles and a Senate trial over Trump’s head could be the only way to keep his misconduct even vaguely in check heading into the 2020 election.
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