Trial by Ordeal

The impeachment trial opened Tuesday, and was still opening when Wednesday arrived.

Senate Minority Leader Chuck Schumer speaks to reporters outside of the Senate chamber during a short recess in the impeachment trial proceedings at the U.S. Capitol on January 21, 2020 in Washington, DC.
Senate Minority Leader Chuck Schumer speaks to reporters outside of the Senate chamber during a short recess in the impeachment trial proceedings at the U.S. Capitol on January 21, 2020 in Washington, DC. Drew Angerer/Getty Images

At 9:30 p.m. on Tuesday night, nine hours into debate over the Senate Majority Leader Mitch McConnell’s proposed resolution setting up rules for the chamber’s impeachment trial of President Donald Trump, McConnell tried to bring the long day closer to an end.
The Republicans had just defeated Democrats’ fourth attempted amendment of the process, this one seeking to subpoena acting White House Chief of Staff Mick Mulvaney as a witness. As with the previous three amendments, which were likewise to subpoena either witnesses or documents, it had been dismissed on a strictly partisan 53-to-47 tally, after (as with the previous three amendments) a lengthy back-and-forth between House impeachment managers and the president’s legal team, and a roll-call vote.

The Democrats were preparing to introduce a fifth amendment—this one subpoenaing documents from the Defense Department—when McConnell interjected.

“I would ask consent to ask the Democratic leader, since there’s a certain similarity to all these amendments, whether he might be willing to enter into a consent agreement to stack these votes,” McConnell said, addressing the presiding officer, Chief Justice John Roberts of the United States Supreme Court, who had to show up for his day job the following morning. In other words, he wanted to bundle everything Minority Leader Chuck Schumer had left, vote on it, and get out of there.

Schumer seemed to delight in McConnell’s parlay offer, as it gave him the rare opportunity to tell McConnell to eat dirt. “The bottom line is very simple,” Schumer said. “As has been clear to every senator, and the country, we believe witnesses and documents are very important. We will have votes on all of those.” He also alluded to more amendments tweaking the text, beyond subpoenaing witnesses or documents, as well. “There will be a good number of votes.”

Schumer offered to break for the night and continue in the morning. It was a reasonable offer in a reasonable world. In the world of the Senate impeachment trial, it was one that McConnell couldn’t possibly accept. The majority leader had committed earlier in the day to keeping the Senate “in session today until we complete this resolution and adopt it.” Exhausting the opposition in an open-amendment process is a standard leadership tactic. But Schumer wasn’t exhausting easily. So McConnell called for a brief break, after which Schumer introduced his amendment to subpoena Defense documents.

Senate Democrats don’t have much power in Mitch McConnell’s Senate, and they won’t have much power in Mitch McConnell’s Senate trial. McConnell, as we saw in repeated votes on Tuesday, has 53 Republicans—or 100 percent of his caucus—who support his plan, crafted in coordination with Trump’s lawyers.

Rather than playing for an impossible win on conviction, Democrats have organized their strategy around presenting the Republicans’ plan—in which presentations from the prosecution and the defense, and a written question period, would precede any decisions about subpoenaing additional witnesses and documents—as not being a “fair trial,” and putting Republicans on the record about whether they oppose that “fair trial” through numerous surgical votes that could come back to haunt them.

Though this sounds as doomed to fail as anything Senate Democrats do, Democrats did win a couple of changes to trial procedure on Tuesday. In the text of the procedure that began circulating on Monday, McConnell had offered the prosecution and defense each 24 hours to make their cases—but each would have only two days to use up those 24 hours. This gave way to Democratic talking points about how McConnell’s “sham” trial not only wouldn’t allow witnesses, but also would be conducted in the “dead of night.” After some pushback from Republican senators, McConnell budged, and each side will now have three days to present its arguments, making each day eight hours instead of 12, so the sessions should end closer to 9 p.m. than 1 a.m. Further, House impeachment records will now be automatically entered into Senate evidence without requiring a separate vote, as McConnell had originally planned.

Though McConnell’s planned scheduling may have been a step too far for some in his conference, they were aligned with him on the bigger question of process: whether to subpoena documents and witnesses now, as Democrats want, or to consider that question in the trial. Despite impassioned speeches throughout the day from impeachment managers like Reps. Adam Schiff and Zoe Lofgren, Republicans didn’t budge.

What Democrats could do, at least, was get Republican opposition to those witnesses on the record now lest they don’t get the opportunity later. Under McConnell’s rules, before votes to summon individual witnesses or specific documents can be considered later in the trial, there will first be a vote on whether the Senate wants to subpoena any witnesses or documents. By voting no on that entire question, the Republicans could keep the Democrats from forcing individual votes on subpoenaing John Bolton, or Mick Mulvaney, or the White House or the Office of Management and Budget.

So Schumer wanted to get vulnerable senators like Susan Collins and Cory Gardner to cast a vote on Tuesday on each of those witnesses and each trove of documents. For each one they reject, a negative ad awaits. Schumer’s fifth amendment failed, as did his sixth and his seventh. During the debate on Democrats’ eighth amendment, to subpoena former National Security Adviser John Bolton, White House counsel Pat Cipollone called on House Judiciary Committee chairman Jerry Nadler to apologize to the Senate. Chief Justice Roberts admonished both sides for failing to respect the decorum of the “World’s Greatest Deliberative Body.” It was nearly 1 a.m. A ninth amendment would follow.

If Mitch McConnell gets the trial he wants, it will be short: each side will make their case within a week; additional witnesses won’t get the opportunity to share their findings; and they’ll acquit the president. In just a couple of weeks, the Senate can return to its usual business of stacking the federal judiciary with conservative thirty-somethings in between thrice-weekly lunches. It’s usually a good bet that McConnell will get what he wants. As Tuesday’s votes stretched on into early Wednesday morning, though—many hours after the first senatorial snooze, from Sen. Jim Risch, was recorded, around 6 p.m.—the Senate Democrats were making it painful for him.

Support This Work

Help us cover the central question: “Who counts?” Your Slate Plus membership will fund our work on voting, immigration, gerrymandering, and more through 2020.